Pete,

The restaurant I own was just sued by a woman who tripped on the sidewalk in front of the entrance.  She claims there was a one-inch lip which had developed in the walkway, and that I was negligent in failing to have the city smooth it out so no one could have their heel caught on it, or that I should have warned her to avoid the raised lip.  I think the case is “frivolous.” What should I do about it? My insurance lapsed just before the incident.

Answer: 

There is California case law which absolves a premises owner for liability for walkway defects which are visibly obvious to the walker, i.e., the walker has a duty to look where she’s going, and if the defect is obvious, to walk around or over it to avoid tripping.  It’s the kind of case that may never get to a jury, – the court “throwing it out” beforehand. How may you get the court to “throw out” a frivolous case? Here’s a sequence of legal tools at your good attorney’s disposal:

You may demur to the complaint, by contending that it fails on its face to state a cause of action, e.g., it fails to state a negligent act by you, i.e., just because the sidewalk was defective and she tripped there, doesn’t mean that you had a duty to have the city correct it, or for you to warn her of the danger, for 1″ high sidewalk defects are by law generally consider benign if they are clearly visible to the walker.

 If a demurrer doesn’t work, you may bring a motion for sanctions to dismiss the case on grounds that there is no evidentiary basis to support its claim.  This may require attaching to your motion your declaration with photographs showing how visible the defect was to any walker at that time of day, or it being well lighted there at night.

If your sanctions motion doesn’t work, your good attorney may take her deposition to make a record of her expectant testimony under oath, pinning her down to the facts that it happened during the daytime, during a sunny day, the sidewalk was then uncrowded, that she didn’t look down before she stepped, and that had she done so she would have seen the 1-inch high lip to avoid.  Now with such deposition testimony, your good attorney may include it in a motion for summary judgment, which argues that there’s truly no dispute as to the facts, i.e., they simply do not support the complaint’s allegations of negligence by you.  If the judge agrees with you, he or she will dismiss the case, and it never gets to a jury.   

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