(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.
Defendant also cites Fielder v. City of Glendale (1977) 71 Cal.App. 3d 719, 139 Cal.Rptr. 719 for the proposition that Universal Mall did not owe a duty of care toward Plaintiff Judy Brown. Fielder is distinguishable on its face because that case was narrowly-applied to the duty of a municipality to the public. The court held that the jury’s verdict for a plaintiff, who tripped and fell over an irregularity on a public sidewalk, must be reversed. The court, in reaching this decision, was guided by Sections 835, 830 and 830.2 of the California Government Code in its determination of whether the public sidewalk defect constitutes a dangerous condition under the Government Code. As the court knows, the burden of proof on a plaintiff in a government tort claim is significantly greater than in a premises liability action against a non-public entity defendant. (See Part 6 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.