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San Diego Appellate Team Prevails in Premises Liability Appeal

San Diego, Calif. (October 28, 2021) - San Diego Appellate Practice Partners Jeffry A. Miller and Corinne C. Bertsche, along with Associate Tracy D. Forbath, recently obtained a win on appeal when California's Court of Appeal for the Second Appellate District, Division Four affirmed the trial court’s grant of a client homeowners association’s motion for summary judgment. In the underlying matter, the plaintiff alleged claims for premises liability and negligence for injuries he sustained when tripping over an uplift of two misaligned adjacent slabs of concrete sidewalk, measuring 1.25 inches and located next to a condominium complex.

The appellate court agreed that the defect in question was a trivial defect as a matter of law, despite the plaintiff’s arguments that there was a triable issue of material fact as to whether the uplift’s dangerousness was exacerbated by the presence of aggravating factors. The appellate court found that the plaintiff’s expert declaration did not support the alleged aggravating factors with admissible evidence, and that the trial court did not abuse its discretion in excluding it.

The court further found that the expert’s interpretation of photographs of the area was unnecessary to determine whether any of the uplift’s features rendered it more dangerous because the photographs clearly depicted the uplift. The court found instead that the evidence supported that the uplift measured no greater than 1.25 inches in height, had straight edges, was clearly visible, and was not obscured. The court further relied on evidence presented that the weather was clear, the plaintiff had walked on the sidewalk previously, the plaintiff’s view of the uplift was not obstructed, and the sun was not in the plaintiff’s eyes.

Mr. Miller is the chair of Lewis Brisbois' Appellate Practice. He specializes in civil appeals and writs and is certified by the State Bar of California Board of Legal Specialization as a Certified Specialist in Appellate Law. His practice includes nationwide class action litigation, medical malpractice and psychiatry, premises liability, employment, real estate, public entity, condominium law, consumer law, insurance, and more.

Ms. Bertsche is a member of Lewis Brisbois' Professional Liability Practice. She has over 23 years of experience as a civil litigator, focusing primarily in the areas of professional liability and legal malpractice defense. She is a Certified Specialist in Legal Malpractice with the California Bar Legal Specialization Board.

Ms. Forbath is a member of Lewis Brisbois' Appellate Practice, focusing on civil appeals, writs, and administrative mandamus matters. She also provides strategic advice to clients and trial counsel with respect to significant trial court motions and post-trial matters where an appellate challenge is anticipated.

Learn more about our Appellate Practice here.


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