PREMISES LIABILITY - Sidewalk Cases

September 12, 2014

Premises liability injury cases (trip/slip & fall) are based on negligence principles: (1) duty, (2) the property owner’s breach of that duty, (3) proximate (legal) cause of the injury, and (4) damages.  The “duty” generally comes from a specific law.  Claims for injuries on sidewalks are prosecuted either against the local government entity that owns or controls the sidewalk, against the owner of private property that adjoins the sidewalk, or both the government and the private landowner.  Many California cities have adopted ordinances that require the owner of private land abutting a public sidewalk to maintain that section of sidewalk, in good repair and not in need of reconstruction; or be in a condition that does not endanger persons using the sidewalk.  Typically, sidewalk claims involve a pedestrian tripping against a RAISED EDGE in the sidewalk surface.  Frequently enough, serious injuries can result in this setting.  I’ve had clients with wrist fractures, avulsed teeth, and knee injuries requiring surgery.   When presented with a sidewalk claim, the defense will invariably argue that the RAISED EDGE was a TRIVIAL DEFECT and therefore the government or homeowner is not responsible for the claimed injuries.  

 

California law applies a “totality of the circumstances” test to determine what is and what is not a TRIVIAL DEFECT in this context; in summary, if the RAISED EDGE is ½" or less and there was no other aggravating factor(s) (e.g., oil, inadequate lighting, an obstacle, etc.) a TRIVIAL DEFECT defense would likely prevail; if the trip hazard is between ½" and 3/4", the injured party has a fighting chance; and if the trip hazard is greater than 3/4" in height, the defense is more likely to argue that the trip hazard was OPEN AND OBVIOUS and therefore the injured party is either substantially or entirely COMPARATIVELY NEGLIGENT and therefore responsible for their own injuries.  Don’t lose heart! Although these cases are difficult, the battle is often worth the result.

 

What should you do if you have been injured by having tripped and fallen on a public sidewalk?  

 

Do all of the following: (1) Get immediate medical attention; (2) Obtain the names and contact information of all witnesses; (3)  Get a ruler and take several good quality photographs of the ruler held next to the RAISED EDGE - and be sure to take these photos ASAP after the injury, because conditions change; (4)  If you don’t have a ruler, use something of an identifiable size in the photograph, like a stack of coins, or a pen, in order to provide a method to scale the height of the RAISED EDGE; (5) either CONTACT AND RETAIN A LAWYER or notify the government and/or occupants/residents of property abutting the sidewalk where you fell. 

 

NOTE THAT CLAIMS AGAINST GOVERNMENTS ARE SUBJECT TO STRICT AND SHORT TIME LIMITATIONS.  IF TIMELY NOTICE IS NOT GIVEN TO THE CORRECT GOVERNMENT ENTITY, REGARDING AN INJURY INCIDENT THAT OCCURRED ON, OR OTHERWISE INVOLVED GOVERNMENT PROPERTY, THE RIGHTS TO SUE AND OBTAIN COMPENSATION FROM THE GOVERNMENT ENTITY WILL BE LOST.

 

In summary, sidewalk injury claims are tough cases to win, but many are certainly worth pursuing.   No one but your lawyer and family are likely to be on your side.  The abutting land owners are very likely to be hostile to your claim, and this hostility is fostered by their homeowners’ insurance company.  In one memorable case, in deposition questioning I asked the resident/owner of a house and yard abutting a public sidewalk if he, “had ever inspected the surface of the public sidewalk in front of his property for a RAISED EDGE or other dangerous condition?” He replied, “No.”  And when asked why he had not made such an inspection, as was required in this case by a City Ordinance, his memorable response was “I didn’t inspect the sidewalk, because there is nothing wrong with it!”  Well, how could he know anything if he didn’t look?  This is a commonly held attitude among people on the defense side of injury claims.  It is simply more convenient to victimize the injured, than to accept responsibility for an injury to another caused by one’s own negligence.  And on top of this hostility, a government, or private insurance company claims people, and defense attorneys alike, will always argue TRIVIAL DEFECT, or OBVIOUS CONDITION.  So get prompt medical care, identify witnesses, take photographs, and contact our office.

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