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A recent California appeal court decision could trip up a slip-and-fall bar that, some attorneys say, has been using expert witnesses as a crutch. The 2nd District Court of Appeal’s ruling last week in Caloroso v. Hathaway, 04 C.D.O.S. 8874, upheld summary judgment in favor of Larry Hathaway, who argued that he was not liable for the crack in his sidewalk that tripped up Josephine Caloroso, despite expert witness testimony that the crack was a dangerous and unexpected hazard. Since defense attorneys in slip-and-falls generally use the “trivial defect” defense, which frees property owners from liability for harm caused by insignificant flaws, expert witness testimony on the definition of trivial has become a mainstay of plaintiff arguments. Plaintiffs attorneys use such witnesses, often building code experts, to establish that a sidewalk defect is significant enough that a property owner was required to fix it. “What the court found is that under these circumstances, the defect was trivial, and the fact that an expert says it was dangerous doesn’t make it so,” said Nancy Hersh, a San Francisco plaintiff attorney and partner at Hersh & Hersh. “It’s not good for the trial attorneys,” said Susan Griffin, a partner at San Francisco plaintiff firm Griffin & Sullivan. Hersh, who has brought slip-and-fall cases, said the ruling is the latest signal that plaintiffs attorneys are growing overly reliant on expert witnesses rather than the facts of a case. For example, she noted, a lawyer doesn’t need an expert to show a jury that a wheelchair-bound plaintiff is hurt. Slip-and-fall cases tend to be difficult, said Hersh and San Francisco plaintiff attorney Darrel Horsted. After all, in all but the most egregious examples, a plaintiff has the misfortune of being the lone person to get injured by an obstacle that thousands have negotiated successfully. Horsted placed the 2nd District ruling that “common sense trumps what an expert has to say” in a string of decisions since the 1970s that make it harder to bring claims over small obstacles. “If it’s a trivial defect, it doesn’t matter what witness you buy,” said Horsted. Attorneys for Caloroso and Hathaway, L.A. solos John Ciccarelli and Priscilla Slocum, did not respond to requests for comment.

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