On April 30, 2020, the plaintiff filed a lawsuit against Pleasant Grove Community Church for premises liability and negligence stemming from a trip and fall incident that occurred on the evening of December 13, 2019. The plaintiff, an 87-year-old woman, was walking along the sidewalk on church property on her way into the sanctuary to attend a Christmas program, when she inexplicably stepped into an adjacent planter, tripped on the sidewalk as she attempted to step out and fell forward onto the sidewalk, hitting her head in the process. The plaintiff claimed traumatic cerebral hemorrhage causing brain compression and concussion with cognitive deficits as a result.

The complaint alleged that the defendant church failed to turn on its exterior lights and thus, created a dangerous condition that masked the existence of the planter area that plaintiff stepped into. The complaint also alleged that the sidewalk configuration was such that it necessarily required patrons to make a hard right turn and that it would cause such patrons to cut across the planter area where two sections of sidewalk converged at right angles.

In written discovery, plaintiff identified her friend and neighbor as a witness to her accident.  The deposition of plaintiff’s friend was taken by partner William A. Jenkins.  The witness described herself as a good friend of the plaintiff’s and that she was walking only a few feet behind the plaintiff when she stepped into the planter and fell.  Contrary to the plaintiff’s contentions, the witness testified that the church’s exterior lights were in fact on at the time of plaintiff’s accident, including two lights situated on the building wall immediately overhead where plaintiff fell. She also testified that she had no problem seeing the subject planter and stated that the reason plaintiff fell was that she was blind in one eye and was walking in a hurried manner.   

Mr. Jenkins filed a motion for summary judgment on the grounds that the subject planter/sidewalk configuration did not constitute a hazardous condition and that the area in question was open and obvious.  In addition to relying on the testimony of plaintiff’s friend with respect to the lighting conditions present at the time of plaintiff’s accident and the open and obvious nature of the planter, a declaration from defendant’s construction expert indicating that the depth of the planter and its location adjacent to the sidewalk, as well as the design of the sidewalk itself, were not in violation of any applicable building codes and that no safety barrier or signage of any type was required at the edge of the planter. The motion argued that the plaintiff’s inattention was the sole cause of her accident and that plaintiff was unable to establish any basis of liability as to the defendant church.

In opposition, plaintiff offered the declaration of a professional engineer who argued that California Building Code Section 11B-303.5 requires a warning curb where a walkway and adjacent surface have an abrupt change in level exceeding 4 inches. By the same token, this expert conceded that the difference in level between the sidewalk and adjacent planter surface was no more than 3 inches, but opined that it was clear that the Building Code recognized that different levels of adjacent surfaces constituted a hazard.

Plaintiff’s expert also attempted to introduce Google Earth photos of the church property taken over several years prior to December 2019 that purportedly showed shrubs in the planter area and that a Google Earth photo taken in September 2019 showed that a large shrub had purportedly been removed in the area where plaintiff stepped into the planter. The expert argued that the removal of the shrub removed a “visual cue” for the plaintiff that would have alerted her of the planter’s edge. Plaintiff offered nothing in opposition to plaintiff’s friend’s testimony regarding the lighting condition issue and thus, she conceded that the church’s exterior lights were on.

In reply, Mr. Jenkins lodged evidentiary objections to the entirety of the purported “evidence” offered by plaintiff’s expert on the grounds that the Google Earth photos were of such poor detail that nothing in the planter area could be definitively identified, that the photos lacked foundation as did the contention that shrubs had been removed.  Moreover, it was argued that the expert’s opinion as to what the Building Code recognized as a dangerous condition was mere speculation, conjecture and guesswork on his part and that if the Building Code felt a 3-inch differential in height constituted a hazard, it would have so stated. The court sustained the evidentiary objections in their entirety and granted the defendant’s summary judgment, finding that plaintiff failed to establish any basis of liability as to the defendant church.

William A. Jenkins is a Shareholder, a Director and the Managing Partner of Ericksen Arbuthnot’s Sacramento office and can be reached at (916)483-5181 ext. 223 or wjenkins@ericksenarbuthnot.com.