Personal Injury Lawyer Blog
(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.
Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 329 P.2d 943 is also instructive. There, the plaintiff fell on a sidewalk. The court stated: A condition is a dangerous or defective one if the hazzard is one which injury may reasonably be anticipated to those properly suing the area for the purposes intended. [citations] whether a particular condition is a dangerous or defective one is generally a question of fact. [Id., at 696].
And, with respect to the issue of whether the height of the rise in the sidewalk constitutes a dangerous condition, the Gentekos case states: It is obvious that a tape measure cannot be used to determine…whether the defect was trivial as a matter of law… [Id. at 698]. In the instant case, it follows that the height of the sidewalk rise is not determinative of whether the defect was trivial. And, as explained above, the defect in question also encompassed a significant gap between the pavers, as shown in Plaintiff’s photo exhibits attached to her Declaration. (See Part 4 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.