Any trip and fall can cause catastrophic injuries. Such falls can result in fractures of hands, arms, collarbones, knees and other extremities. They can also cause skull fractures and brain injuries. For older people, injuries such as hip fractures are common and can cause a rapid decline in health and the ability to be active, and can lead to death. So, if you have tripped and fallen, in order to recover for your injuries, you must prove not only that the defendant maintained a dangerous condition of the property and that they knew or should have known about the danger, you must also prove that the condition that caused you to fall is not, in the eyes of the law, a "trivial defect."

In California, a trivial defect is generally considered to be a change in the elevation of a walkway of 3/4 of an inch or less. There are some court cases that have held that a trivial defect is a change in elevation of 1.5 inches or less. What this means to you is that if you trip and fall over a raised portion of a walkway that is less than 1.5 inches, even though you tripped and fell and suffered a serious injury, a judge may throw your entire case out of court before you ever reach a jury. BUT, [and this is a big BUT] there are exceptions to this general rule.

If the defect or dangerous condition is in broad daylight, where you are familiar with the area, and there are no obstructions that prevented you from seeing the danger, you would likely lose. However, if it is dusk or nightfall, if the lighting conditions were poor, if you were unfamiliar with the area, if there were leaves or debris that concealed the danger, or if weather conditions prevented you from seeing the danger, you may well be able to avoid this trivial defect argument. What is most important is if, in the totality of the circumstances, there were reasons why you were unable to see or observe or avoid the condition, you have a triable issue of fact to present to the jury to decide and can prevent a judge from deciding that as a matter of law, the dangerous condition is trivial. 

There are many other factors to consider in determining whether your trip and fall [or slip and fall] claim is winnable. Whether the defendant knew or should have known about the danger; whether the defendant created the dangerous condition; whether you can be blamed for not paying attention to the ground or dangerous conditions in front of you, whether the condition was "open and obvious" are just a few. But in terms of trivial defects, you now know and can understand the concerns or a judge, how a defendant might defend against your claim, and what factors can help you overcome the trivial defect defense.

John P. Rosenberg
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Premier Personal Injury Attorney, Speaker and Author
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