Plaintiff was jogging in the Oakland area. Suddenly, her toes caught a height differential in the sidewalk and she tripped and fell causing a severe fracture of her pinky which resulted in a slight deformity with the likelihood of developing arthritis. The fracture was surgically repaired and plaintiff was not able for a period of time to return to her job as a nurse.
After plaintiff fell she looked to attempt to determine the cause. At that point, for the first time she saw the 2 inch ‘lift’ in the sidewalk. Winer, McKenna, & Burritt retained an arborist as an expert witness who testified a home owners tree roots caused the defect in the sidewalk. Further, the arborist reported that the defect had to be present for a significant amount of time. Winer and McKenna took the position that the differential should have been repaired by either the homeowner or the city, yet, was left in its defective state creating a dangerous condition.
RESULT: Settlement on behalf of plaintiff $175,000.