Personal Injury Law

Sacramento Mall's Unsafe Pavers Cause Shopper To Fall, Part 7 of 9

By Moseley Collins, Esq.

(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.

Full post as published by Sacramento Injury Lawyer Blog on May 11, 2010 (boomark / email).