A recent judicial decision reports of the loving relationship between Ann and her dog, B.J., a poodle, four years of age, weighing approximately 80 pounds. Ann apparently had a history of walking her dog several times a day without incident. Until the day the walk was with incident.
On the day of injury, Ann was taking B.J. for a walk, on a leash, and passed in front of a condominium complex near a similar condominium complex in which she resided. The weather was reported dry and clear, with the summer sun shining brightly overhead. The judicial opinion advises:
"[Ann’s] walk ended when one of her feet came in contact with a upturned, jagged piece of sidewalk, causing her to lose her balance and fall, face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk.
The fall knocked the wind out of her. In the fall, [she] fractured her right wrist, fractured and lacerated her left knee, broke her fourth and fifth ribs, and sustained a large hematoma in the area of her right breast. She sought medical attention for her injuries, eventually surgery to repair her left knee. During her recovery from the fall, she contracted pneumonia. At the time of trial, she was unable to walk more than a block without pain, and was using a wheelchair to go longer distances."
The decision does not report, for those who might have interest, any difficulty encountered by B.J.
At the time of trial, it came out that the gardener for the condominium property adjacent to the "sidewalk ‘watered the the vegetation on both sides of sidewalk, utilizing . . . sprinklers . . . . [and] was aware of the break in the sidewalk and recalled that it had been there for a few years prior to the date of [her] fall."
Ann’s attorney apparently retained the services of a civil engineer and general contractor to testify as an expert witness at the time of trial. The expert testified that the sidewalk defect had been caused by the growth of a tree root under the sidewalk which "had been enhanced by the fertilizing, watering and trimming of the trees" by the gardener for the owner of the condominium property.
The appellate court, in reviewing the matter, distinguished this factual situation from the situation in which an offending tree is owned and routinely maintained by the City. In this situation, the condominium property owner had
"planted and maintained all of the trees and vegetation in the area, on both sides of the sidewalk, had installed sprinklers on both sides of that walkway, and watered and trimmed the trees which grew the roots which caused the sidewalk to be uplifted and crack, presenting the danger which befell [Ann]."
The appellate court thus affirmed judgment for Ann.
The moral of the story? While taking the time to smell the flowers, keep your eye on the pathway!