The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)
Notice of the Defect by the Property Owner or the Type of Property the Sidewalk Defect is Located Plays No Role in Determining Triviality.
In trivial defect doctrine cases it has sometimes been argued that because an individual or entity had notice of the defect’s existence, such notice is a factor which can impose liability despite a defect otherwise being classified as trivial. Courts have uniformly rejected this argument. In Caloroso, the court said “minor defects … [in sidewalks] inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable.” Thus [the defendant] is not liable for this accident irrespective of the question whether he had notice of the condition. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927. (Also see: Barrett v. City of Claremont, 41 Cal. 2d 70, 73).
Notice of a defect does not somehow make a defect less trivial. Additionally, notice has never been included as an aggravating factor or a factor that is viewed as part of the totality of circumstances surrounding a defect in any of the leading sidewalk defect cases.
The trivial defect doctrine states that property owners have no duty to repair trivial or minor defects in a sidewalk- this no duty to repair exists regardless of whether the property owner has notice of the defect or not.
Because The Defect Is Trivial. Summary Judgment Is Appropriate As A Matter Of Law.
Here, the defect involved in Mrs. Brown’s accident is not one where reasonable minds could debate the dangerousness the defect posed. The defect in the sidewalk was less than one-half inch high. The defect was plainly visible and was not hidden or hard to see in any way. Other pedestrians were able to traverse the defect without incident. There is no evidence that this defect presented any sort of additional aggravating factor which made it more dangerous than the ordinary sidewalk crack which pedestrians can navigate safely by exercising due care.
CONCLUSION
Plaintiff cannot hold Universal Mall liable for her injuries sustained during her trip and fall accident. The defect involved in Mrs. Brown’s accident is trivial. Therefore, Defendant Universal Mall respectfully requests that this Court uphold summary judgment in its favor.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.