Articles Posted in Trip and Fall

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

DR. BLACK’S MANAGEMENT OF DECEDENT’S EMERGENCY ROOM VISIT FAILED TO MEET THE STANDARD OF CARE

The moving party has the burden of establishing evidentiary facts sufficient to entitle him or her to judgment as a matter of law. CCP § 437c(c); Vesely v. Sager (1971) 5 Cal.3d 153. The opposing party has the burden to controvert issues, only when the moving party has met its burden. CCP 437c(o)(2). As set forth above, Dr. Black has not met this burden. Further, the expert opinion that Dr. Black met the standard of care avoids key facts that are undisputed. Finally, the issue of compliance with the standard of care is controverted by competent contrary opinion.

Dr. Black moves for summary judgment on the opinion of his retained expert that his care and treatment was “at all times appropriate and within the standard of care.” (Decl. of Dr. Howard.) To reach this result, Dr. Howard selectively spins the evidence. Radiologist Cesar Lee, advised Dr. Black that 1) he suspected a chronic fracture of the dens (C-2), incomplete closure of the C-1, and 3) that he could not see any acute fracture. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Howard interpreted this as no more than “chronic degenerative changes without evidence of any acute injury or need for emergent intervention.” (Decl. of Dr. Howard.) He does not address the fact that Dr. Black was advised that Mr. Greene had a fractured cervical vertebrae, chronic or otherwise, nor does Dr. Howard explain what the standard of care requires for this presentation.

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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

No Undisputed Fact

Defendant’s Motion for Summary adjudication is based on the assertion that no evidence supports the liability element of the malpractice claim. However, of the 14 proposed undisputed facts, the only ones even remotely material to this point (11-14) are not undisputed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendant has cited no authority supporting her proposal that such disputed issues can be summarily adjudicated on the word of one of the party’s retained witnesses.

No Material Fact
The court’s sole function on a motion for summary Judgment/adjudication is issue finding, not issue determination. The court must determine whether there is a triable issue as to any material fact. CCP § 437c(c). A material fact, for summary judgment purposes, must relate to some claim or defense in issue under the pleadings, and it must be in some way essential; i.e. if proved it could change the outcome of the case. Pettus v. Standard Cabnit Works (1967) 249 Cal.App.2d 64.

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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

No Admissible Evidence

Defendants’ Motion for Summary Judgment is based on the second amended complaint and a declaration. However, none of the documents is properly authenticated, on personal knowledge, or otherwise.

A motion for summary judgment/adjudication must be supported by evidence establishing the moving party’s right to the relief sought. Such evidence shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. CCP § 437c(b). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Where a motion is based upon deposition testimony excerpts, the procedure is to attach copies of relevant pages of deposition transcripts to the moving party’s declarations. The declarations, made on personal knowledge, serve to identify and authenticate the testimony. Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950.

Written documents, likewise, must be authenticated by declarations or other evidence establishing that the writing is what it purports to be. Evid. Code § 250, § 1401(a); O’Laskey v. Sortino (1990) 224 Cal.App.3d 241; Local Rule 9.21(e).

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It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

STATEMENT OF FACTS

Albert Greene was injured in a fall at the Sacramento National Sporting Goods store on February 17, 2005. Thereafter, Mr. Greene received medical care and treatment from Defendants Black, Lee, Wong, and Sacramento Valley Medical Center. Mr. Greene was hospitalized for five days after which he was transferred to convalesce for three weeks of physical therapy with no more than a soft collar, and released to home.

Mr. Greene separated from his wife, Frances Greene, on March 11, 2006. Thereafter, Mr. Greene became a resident of an assisted living home in Sacramento, California with his daughter Sylvia Smith exercising a healthcare power of attorney. On April 13, 2006, Ms. Smith arranged for a mobile radiologist to conduct a head-to-toe CT scan due to his decline in mobility. Mr. Greene’s three fractured cervical vertebrae were then discovered. Neurosurgeon, Dr. William White, MD, subsequently performed a full cervical laminectomy in May 2006.

Mr. Greene died on June 23, 2007.

DEFENDANT’S MOTION DOES NOT SATISFY HER BURDEN UNDER CCP § 437c
Summary Judgment is a drastic procedure which is to be used with caution to avoid becoming a substitute for the fact finding process of trial. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue Reading ›

It is worth noting that situations similar to those described in this trip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

Plaintiff Sylvia Smith, et al.’s Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment
INTRODUCTION

This is a trip/fall and medical malpractice action arising out of decedent Al Greene’s February 2005 fall in the Sacramento National Sporting Goods store, wherein he fractured three cervical vertebrae, and the subsequent failure to treat these injuries at the Sacramento Valley Medical Center. Moving party Thomas Black, MD, is the attending emergency room physician who was advised of the possible fractures but did not respond accordingly. The fractures were not treated until more than a year later by which time Mr. Greene was a functional paraplegic. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Black now moves for summary judgment on the grounds that notwithstanding his failure to address the cervical fractures, he met the standard of care in the community and thus committed no malpractice. Plaintiffs’ emergency room consultant disagrees that Dr. Black failure to address the possible cervical fractures satisfies the standard of care.

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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.

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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.)

ARGUMENT

The Sidewalk Differential Should Be Classified As A Trivial Defect As A Matter Of Law.

It is well established that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on property. Courts have referred to this simple principle as the trivial defect defense. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927 (2004); citing: Whiting v. City of National City, 9 Cal. 2d 163 (1937).

In Ursino v. Big Boy Restaurants, 192 Cal. App. 3d 394, 397 (1987), the court stated that the trivial defect defense could be asserted by both governmental and nongovernmental defendants alike because it is impossible to maintain heavily traveled surfaces in a perfect condition … minor defects … are bound to occur in spite of the exercise of reasonable care by the party having the duty of maintaining the area involved. (Citing: Graves v. Roman, 113 Cal. App. 2d 584, 586-587 (1952)).

The trivial defect defense is not an affirmative defense but instead is an aspect of duty that a plaintiff must overcome. Caloroso, 122 Cal. App. 4th 922, 927 (2004). The most important question is whether the plaintiff has shown there is a triable issue as to whether there was a dangerous condition in the walkway that the defendant had a duty to repair. Id.

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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.)

STANDARD OF REVIEW

Universal Mall moves for summary judgment pursuant to Code of Civil Procedure § 437c, which provides the statutory authority for the Court to grant this motion. This Section provides in relevant part:

(a) Any party may move for summary judgment in any action of any proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.

(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

(o) A cause of action has no merit if either of the following exists:
(A) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(B) A defendant establishes an affirmative defense to that cause or action.

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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.)

STATEMENT OF FACTS

On March 14, 2007, Judy Brown and her husband Kenneth drove to the Universal Mall (“Universal”) in Sacramento, California. Mrs. Brown had been to Universal several times in the past. After two hours of shopping, she exited the mall through the same route that she entered. Mrs. Brown’s husband had exited about ten minutes earlier and she proceeded outside to meet him in the parking lot.

As she proceeded to the car, she was not paying attention to anything in particular and was looking straight ahead. The next thing Mrs. Brown realized was that she had hit the ground and jumped right back onto her feet. She did not feel her foot catch the pavement, nor does she have any evidence as to what might have caused her to fall.

At the time of her accident, Mrs. Brown was wearing flat-soled walking shoes and carrying two bags. Mrs. Brown testified that on the day in question, the area where she traversed was clear of leaves and debris. The weather on the day of the accident was beautiful and sunny. Further, she stated that she had no problems seeing and there were no shadows on the concrete. Plaintiff later measured a raised area between two concrete slabs where she alleges she tripped and found it to be one-half inch or less in height. (See Part 3 of 5.)

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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.)

Defendant Universal Mall’s Motion for Summary Judgment.

The instant Motion for Summary Judgment shall be based on the undisputed facts set forth in the Separate Statement of Undisputed Material Facts and Reference to Supporting Evidence accompanying this motion, and the unrefuted evidence set forth in the evidentiary material submitted with this motion referenced therein, on the grounds that these undisputed facts establish that a complete defense to each of the causes of action of plaintiffs Complaint and/or that plaintiff cannot establish an essential element of each of these causes of action. Moving defendant is therefore entitled to summary judgment as a matter of law, pursuant to Code of Civil Procedure 437c.

MEMORANDUM OF POINTS AND AUTHORITIES
Defendant Universal Mall (hereinafter “Universal Mall”) hereby requests the court to award summary judgment in its favor, as no triable issues of material fact exist as to plaintiff’s causes of action against it. Plaintiff alleges the Universal Mall acted negligently and that such tortuous conduct was the proximate cause of her injuries. A negligence cause of action assigns liability to a party when it is found that party owed a duty of care to the plaintiff, breached their duty of care, and that his conduct was the proximate cause of the plaintiff’s injury.

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