(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.)
GENUINE TRIABLE ISSUES OF FACT EXIST SUFFICIENT TO JUSTIFY THE COURT’S DENIAL OF DEFENDANT UNIVERSAL MALL’S MOTION FOR SUMMARY JUDGMENT
In support of its motion, Defendant has offered its separate statement of undisputed facts and supporting evidence, asserting that these facts and supporting evidence warrant a granting of its motion on the theory that Plaintiff Judy Brown is unable to prove that Defendant had a duty of care toward her. It is not the burden of Plaintiff to disprove the Defendant’s lack of duty defense; rather, the burden of proof is on the defendant to prove, by evidence, that this defense is justified. See Cal. Civ. Code § 437(c)(p)(2).
In its Separate Statement of Undisputed Material Facts, in support of its trivial defect/no duty of care defense, Universal Mall states that her own measurement of the lip she alleges caused her to fall is about 1/2 inch . In support of this alleged undisputed material fact, Defendant cites Plaintiff’s deposition testimony and refers to the photograph of the sidewalk, taken by Plaintiff’s husband, Kenneth. Plaintiff disputes this alleged fact. As stated in the Declaration of Judy Brown, she misstated the height of the elevation of the upraised portion of the sidewalk. It was actually about one-inch in height, not one-half inch in height. See Paragraph 6 of Plaintiff’s Declaration.
Further, the photographs taken by Kenneth Brown of the defective area of the sidewalk show that the upraised portion of the sidewalk measures about one-inch. And, as stated in the Declarations of Judy Brown and Kenneth Brown, the defective condition of the sidewalk consisted not only of a one-inch elevated portion of the sidewalk, but also a gap between the portions of pavement where she tripped and fell, measuring approximately one inch.
See Declaration of Judy Brown and Kenneth Brown. Also, see Paragraph 5 of Plaintiff’s Declaration wherein she states that defense counsel, at her deposition, never asked her any questions about the gap between the paver sections where she tripped and fell.
Restated, the defect was not a one-half inch elevation in pavement; rather, the defect was a one-inch elevation in the pavement and a one-inch gap between the pavers of the sidewalk, not just a defect in the concrete of a half-inch, as alleged by the moving party.
Defendant states that Mrs. Brown did not feel her foot catch, nor is she aware of the mechanics of her fall. How this alleged fact is relevant to Defendant’s defense is not known, as it is not addressed in its legal argument. However, Plaintiff disputes this alleged material fact. As stated in Plaintiff’s response to UMF No. 5, and as further stated in the Declaration of Judy Brown, at Paragraph 8, in regard to the mechanics of her trip/fall accident, she felt her foot catch where the defects are on the sidewalk, and she fell forward. Further, she did testify at her deposition that the reason for her fall is that her shoe caught. See Plaintiff’s response to UMF No. 5 and her supporting evidence; Plaintiff’s Deposition 15:22-24. If follows that Defendant’s assertion that Mrs. Brown did not feel her foot catch, or is not aware of the mechanics of her fall is inaccurate. (See Part 8 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.