Articles Posted in Trip and Fall

(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.)

In Defendant next states that “Plaintiff has visited Universal Mall on multiple occasions.” Query: Without proving that Plaintiff had traversed over the same section of defective sidewalk prior to the accident, and knew of its existence before the accident, what relevance does this fact have to the Defendant’s argument that the defect was trivial? The answer is: None.

As explained above, Defendant’s Statement of Undisputed Facts consists, in part, of misstatements of the facts regarding the extent and nature of the defective condition of Defendant’s property which caused Plaintiff’s accident. The Statement of Undisputed Facts also includes alleged facts which are irrelevant to Defendant’s Motion for Summary Judgment. Because Defendant’s Statement of Undisputed Facts and supporting evidence is insufficient to support its motion, the motion should be denied.

DEFENDANT’S MOTION SHOULD BE CONTINUED OR DENIED BECAUSE DISCOVERY HAS NOT BEEN COMPLETED

Pursuant to Cal. Code of Civil Procedure §437c(h), if it appears from an affidavit submitted in opposition to a motion for summary judgment that the facts essential to justify opposition may exist, but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make an order that is just ….

An Answer was not filed until July 23, 2009 by Macy’s West, and the order the amended complaint was not signed and filed by the Court until August 10, 2009.

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(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 states that “Mrs. Brown was concentrating on getting to her car and looking straight ahead.” Plaintiff does not dispute this fact. However, Plaintiff does dispute the inference of negligence attributed to her for not staring closely at the sidewalk to discover a defect on the sidewalk. The law is quite clear on this subject: A pedestrian is not required to fix his eyes on the ground or to be on the constant lookout for danger; rather, he “has the right to assume that it (the sidewalk) is in a reasonably safe condition.” Peters v. City and County of San Francisco (1953) 260 P.2d 55, 59, a California Supreme Court decision. Likewise, Plaintiff had a right to assume that the sidewalk at the Mall was safe to walk on.

Further, the above assertion is irrelevant to Defendant’s trivial defect defense, as it pertains only, if at all, to the issue of contributory negligence.

Defendant also states that the Plaintiff was carrying a lightweight Macy’s bag and her purse at the time of the incident. Plaintiff does not dispute this fact, but asks the question: What relevancy does this fact bear on the Defendant’s motion? The answer is: None.
Defendant then states that Plaintiff had no difficulty seeing at the time of her accident . Plaintiff does not dispute this fact; however, Plaintiff was not required to search the sidewalk for a defect as she was walking on it (Peters, supra, at page 59). So, what relevance does this fact have in this motion or case? T he answer is: None.

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(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.

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(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.)

In the instant case, Plaintiff’s theory of the liability of Defendant Universal Mall is neither based upon or determined by the burden of proof set forth in the Government Code. And, as one can see, based on the discussion of liability in the Fielder case, the court focused on the issue of what is a “dangerous condition” of public property, citing numerous cases where the defendant was always a public entity.

However, even in Fielder, the court conceded, on the issue of whether a particular condition is a dangerous or defection condition, that other courts, such as the court in Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 309 P. 2d 943, have held that whether a condition is dangerous or defective is generally a question of fact. See Fielder, at p. 730. But again, as stated, the Fielder decision is a narrowly construed case, as it only applies to premises liability actions against public entities in California.

Returning to the decision in Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, cited by Defendant, the defect in that case was an elevation on the sidewalk that was less than one-half inch at its highest point. It is no wonder that the court considered this to be a trivial defect. Contrast that defect with the one in Plaintiff Judy Brown’s case: a one-inch elevation and a one-inch gap between the sidewalk pavers. (See Part 7 of 9.)

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(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.)

In the instant case, we are not presented with a “mere crack” in the pavement; rather, we are dealing with a one-inch rise in the pavement and a one-inch gap between the pavers. In Caloroso, the court, focusing simply on a crack defect, stated that minor defects like a crack in the walkway are “inevitable,” so the failure of the homeowner to warn the plaintiff, or to repair the crack, was not unreasonable (Caloroso, at 923). That is not the same situation in the Brown case: a one-inch rise and a one-inch gap are not inevitable.

In Plaintiff Judy Brown’s case, she submits that it was not only the rise in height of the pavement (which cannot be defined as a mere crack) in conjunction with the gap in between the pavers constituted a dangerous sidewalk defect, and one which caused her to trip and fall.

To further distinguish Caloroso from the instant case, in that case, the fall occurred on the walkway owned by a homeowner; whereas, in sharp contract, Plaintiff Judy Brown trip and fall accident occurred on a shopping Mall walkway. Certainly it is reasonable for one to expect that a shopping Mall, like Defendant Universal Mall, has a special duty toward its patrons, like Plaintiff, to detect and repair defects on its property that could foreseeably harm them. Civil Code Section 1714 clearly mandates that every person has a duty to manage his property so as not to cause an injury to persons. See also Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97.

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(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.)

In its brief, Defendant cites the case of Kasparian v. Avalonbay Communities. Inc. (2007) 156 Cal.App. 4th 11, 66 Cal.Rptr. 3d 885 of the proposition that a court may decide that a sidewalk defect is trivial. The Kasparian decision is instructive. There the plaintiff sued his landlord for negligence and premises liability, alleged that she tripped and fell over a recessed drain on a walkway. The trial court granted the defendant’s motion for summary judgment on the ground that the recessed drain was, as a matter of law, an obvious and trivial defect, negating any duty of care by the defendant-landlord. The tenant-plaintiff appealed, and the court of appeal reversed the judgment on the ground that reasonable minds could differ based upon reviewing the photographs depicting the defective condition of the walkway, where the defect was trivial or open, or obvious.

Likewise, in the instant case, reasonable minds could differ on whether the combination of the upraised portion of pavers with a gap between the sections of pavers constitutes a dangerous property condition, or a trivial defect. Remember, we have two defects in the sidewalk where Plaintiff Judy Brown tripped and fell.

Defendant also cites the case of Caloroso v. Hathaway (2004) 122 Cal.App. 4th 922, 19 Cal.Rptr. 3d 254 in its brief, for the proposition that the defective condition in the instant case was trivial as a matter of law. However, Caloroso is distinguishable on its facts. There, the issue was whether a slight crack in a walkway was a trivial defect.

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(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.)

Universal Mall argues that its summary judgment motion should be granted because Plaintiff cannot prove that it owed a duty of care toward her, because the sidewalk defect which caused her to trip and fall was “trivial in nature.” In support of that assertion, it contends that a one-half inch rise in the sidewalk is a trivial defect; and that as such, it did not owe a duty to the Plaintiff to either cure the defect or warn her of its existence.

One of the problems associated with Defendant’s argument is its description of the defective condition of the sidewalk. It argues that the defect was solely a one-half inch difference between the heights of the pavers (sections) of the sidewalk. That is not true. The defects consisted of a 1″ rise in height, and an approximate 1″ gap” between the pavers on the sidewalk (Supported by the Declarations of Judy Brown, Paragraphs 5-6 and Kenneth Brown, Paragraph 8; see also the photo exhibits which show the rise in height and the gap, attached as Exhibits 1 and 2 to Declarations of Judy Brown and Kenneth Brown).

Defendant Universal Mall argues that a one half inch rise in the paver on the sidewalk is so trivial that reasonable minds would not differ as to this being only a trivial defect. As explained above, the defects were a 1″ gap and a 1″ rise in height of the sidewalk paver. Defendant omits any reference to the gap in the pavers, choosing, rather, to describe the defect as only an upraised portion of sidewalk. Further, and importantly, whether the defects were trivial or substantial in nature in one which a jury can decide in this case. As held in Johnson v. City of Palo Alto (1962) 199 Cal.App2d 148, 152, 18 Cal Rptr, 484, it is up to a jury to decide whether or not the condition of a sidewalk is dangerous or defective, or merely trivial.

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(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.)

When Plaintiff Judy Brown exited Macy’s store, she was walking at a normal pace, and was looking straight ahead towards the location of her parked car. She was neither looking for nor apprehending the presence of a sidewalk defect as she was walking, according to Ms. Brown’s declaration.

As a result of this accident, caused by the negligence of Defendants, Plaintiff Judy Brown suffered, inter alia, fractures of her right wrist and right knee. To date, she continues to experience significant pain and physical limitations because of these injuries.

With respect to Defendant Universal Mall’s Summary Judgment Motion, it should be noted by the court that Macy’s is also named as a defendant in this action. It has not joined Defendant Universal Mall’s Motion For Summary Judgment. Macy’s filed its answer to the complaint on or about July 23, 2009. Also, Mall Associates, the owner of the Mall, has been named as a “DOE” defendant, and service is currently being attempted on that Defendant.

In regard to Defendant Universal Mall’s motion, as explained below, there are genuine triable issues of material fact sufficient to justify this court’s denial of the motion.

ARGUMENT
A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER A TRIVIAL DEFECT CAUSED PLAINTIFF’S TRIP/FALL ACCIDENT
In support of its motion, Defendant Universal Mall argues that the sidewalk defect which caused Judy Brown to trip and fall was a trivial, one-half inch, upraised, portion of sidewalk.

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(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.)

Plaintiff Judy Brown’s Memorandum of Points and Authorities in Opposition to Defendant Universal Mall’s Motion for Summary Judgment
STATEMENT OF FACTS

Plaintiff Judy Brown and her husband, Kenneth, residents of Sacramento, California, went to Universal Mall, a shopping center located in Sacramento, California, on March 14, 2007. After parking their car in the “B” lot of the Mall, they entered the Macy’s store. After approximately two hours of shopping, Plaintiff’s husband, Kenneth, decided to return to the car to wait for his wife. When Plaintiff Judy Brown finished her shopping, she exited Macy’s, from the Home Furnishings door, and began walking on the sidewalk adjacent to the store. While walking, she tripped and fell because of a defect in the sidewalk, to wit: a gap and upraised portion on the sidewalk. Photographs depicting the gap and upraised portion of the sidewalk were taken by her husband, Kenneth, and are attached to his Declaration as Exhibits 1 and 2, and are incorporated herein.

At her deposition, Plaintiff Judy Brown mistakenly testified that the upraised portion of sidewalk was one-half inch in height. It’s height is actually 1″ high (See Plaintiff’s Declaration, at Paragraph 6; also see photographs attached as Exhibits 1 and 2 to the Declaration of Kenneth Brown).

Further, Plaintiff Judy Brown was not asked any questions about the “gap” in the pavement

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