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Case Study
Case Study
Trip-and-Fall Case Study
Trip-and-Fall Case Study
Winning a Trip-and-Fall Case After the Theme Park Repaired the Evidence
Winning a Trip-and-Fall Case After the Theme Park Repaired the Evidence
Winning a Trip-and-Fall Case After the Theme Park Repaired the Evidence
A theme park repaired the exact spot where our client fell, then called the defect “trivial.” See how Schwinghamer Law used photogrammetry to win.
A theme park repaired the exact spot where our client fell, then called the defect “trivial.” See how Schwinghamer Law used photogrammetry to win.
Written by Noah Schwinghamer | 27 Jun 2026
Written by Noah Schwinghamer | 27 Jun 2026
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Quick Summary
Quick Summary
Our client tripped on broken, uneven asphalt at a theme park during a group outing and was injured. She had photographed the spot with her phone, but nothing in the photos showed scale. Before our expert's site inspection, the theme park repaired only the exact spot where she fell — and under California's subsequent remedial measures rule, that repair could not be used against it to prove the area was dangerous. The park then moved for summary judgment, arguing the defect was “trivial” as a matter of law. Using photogrammetry to extract precise measurements from photos of the scene, we defeated the motion and secured a favorable settlement.
Our client tripped on broken, uneven asphalt at a theme park during a group outing and was injured. She had photographed the spot with her phone, but nothing in the photos showed scale. Before our expert's site inspection, the theme park repaired only the exact spot where she fell — and under California's subsequent remedial measures rule, that repair could not be used against it to prove the area was dangerous. The park then moved for summary judgment, arguing the defect was “trivial” as a matter of law. Using photogrammetry to extract precise measurements from photos of the scene, we defeated the motion and secured a favorable settlement.
What happened?
What happened?
Our client, a mother, was attending a group outing at a theme park when she tripped on broken, uneven asphalt and fell, suffering injuries. Thinking ahead, she used her phone to photograph the damaged pavement. The photos captured the hazard — but, like most cell-phone photos taken in the moment, they did not include a ruler or any other object to show the size of the defect.
Our client, a mother, was attending a group outing at a theme park when she tripped on broken, uneven asphalt and fell, suffering injuries. Thinking ahead, she used her phone to photograph the damaged pavement. The photos captured the hazard — but, like most cell-phone photos taken in the moment, they did not include a ruler or any other object to show the size of the defect.
Why was this trip-and-fall case so difficult?
Why was this trip-and-fall case so difficult?
Three problems stacked up. First, our client's photos showed the broken pavement but had nothing in frame to establish scale, so the exact height of the defect was unknown. Second, when Schwinghamer Law arranged a formal site inspection so our expert could examine and measure the pavement, we arrived to find that the theme park had repaired only the precise spot where our client fell — erasing the very evidence we came to measure. Third, the park then moved for summary judgment, arguing that the defect was “trivial” and therefore not dangerous as a matter of law.
Three problems stacked up. First, our client's photos showed the broken pavement but had nothing in frame to establish scale, so the exact height of the defect was unknown. Second, when Schwinghamer Law arranged a formal site inspection so our expert could examine and measure the pavement, we arrived to find that the theme park had repaired only the precise spot where our client fell — erasing the very evidence we came to measure. Third, the park then moved for summary judgment, arguing that the defect was “trivial” and therefore not dangerous as a matter of law.
What is California's "subsequent remedial measures" rule, and why did it matter here?
What is California's "subsequent remedial measures" rule, and why did it matter here?
It might seem obvious that a property owner who rushes to repair the exact spot where someone fell knew the area was dangerous. But California law does not let an injured person use that repair as proof of negligence. The rule is set out in California Evidence Code section 1151:
It might seem obvious that a property owner who rushes to repair the exact spot where someone fell knew the area was dangerous. But California law does not let an injured person use that repair as proof of negligence. The rule is set out in California Evidence Code section 1151:
CALIFORNIA EVIDENCE CODE § 1151
When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.
CALIFORNIA EVIDENCE CODE § 1151
When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.
In practice, that meant we could not simply point to the repair and argue it showed the park was at fault. Worse, the targeted repair had physically destroyed the defect before our expert could measure it. We needed another way to prove how dangerous the pavement really was.
In practice, that meant we could not simply point to the repair and argue it showed the park was at fault. Worse, the targeted repair had physically destroyed the defect before our expert could measure it. We needed another way to prove how dangerous the pavement really was.
How did we measure a defect that had already been repaired?
How did we measure a defect that had already been repaired?
Our expert used photogrammetry — the science of taking precise measurements from photographs. Even though our client's phone photos contained no ruler, the scene itself contained fixed features of known or measurable size. By photographing those same reference points during the inspection and analyzing them together with the earlier images of the broken pavement, our expert was able to reconstruct the height and extent of the defect that the repair had erased. The result was a reliable, expert-backed measurement of a hazard the park had tried to make disappear.
Our expert used photogrammetry — the science of taking precise measurements from photographs. Even though our client's phone photos contained no ruler, the scene itself contained fixed features of known or measurable size. By photographing those same reference points during the inspection and analyzing them together with the earlier images of the broken pavement, our expert was able to reconstruct the height and extent of the defect that the repair had erased. The result was a reliable, expert-backed measurement of a hazard the park had tried to make disappear.
How did we defeat the "trivial defect" summary judgment motion?
How did we defeat the "trivial defect" summary judgment motion?
California's trivial defect doctrine lets a court dismiss a case only when a walkway defect is so minor that it is not dangerous as a matter of law. But there is no fixed measurement that makes a defect “trivial.” Courts must weigh the size of the height difference (the “lift” between the broken sections of pavement) together with the surrounding circumstances — things like lighting, foot traffic, debris, and whether the hazard was hidden. Armed with our expert's photogrammetry measurements and the conditions at the scene, we showed there was a genuine factual dispute about whether the defect was dangerous. The court agreed, denied the motion for summary judgment, and the case proceeded.
California's trivial defect doctrine lets a court dismiss a case only when a walkway defect is so minor that it is not dangerous as a matter of law. But there is no fixed measurement that makes a defect “trivial.” Courts must weigh the size of the height difference (the “lift” between the broken sections of pavement) together with the surrounding circumstances — things like lighting, foot traffic, debris, and whether the hazard was hidden. Armed with our expert's photogrammetry measurements and the conditions at the scene, we showed there was a genuine factual dispute about whether the defect was dangerous. The court agreed, denied the motion for summary judgment, and the case proceeded.
What was the outcome?
What was the outcome?
Having survived summary judgment with strong, expert-supported evidence — and having neutralized the park's attempt to bury the defect — we negotiated a favorable settlement for our client.
Having survived summary judgment with strong, expert-supported evidence — and having neutralized the park's attempt to bury the defect — we negotiated a favorable settlement for our client.
Frequently Asked Questions
Frequently Asked Questions
Q: What is the "trivial defect" defense in California?
A: It is a rule that protects property owners from liability for very minor walkway defects. A court can find a defect “trivial” as a matter of law, but only after considering both the size of the defect and the surrounding circumstances — such as lighting, visibility, foot traffic, and whether anything concealed the hazard. There is no bright-line measurement, so whether a defect is trivial is often a question for the jury.
Q: Can a property owner use the fact that they fixed the hazard against my claim?
A: No. Under California Evidence Code section 1151, repairs or other safety measures taken after an incident cannot be used to prove the owner was negligent. That rule cuts both ways: it can keep helpful repair evidence out, but it does not prevent you from proving your case through other evidence, such as photographs, witness testimony, and expert analysis.
Q: What is photogrammetry, and how is it used in trip-and-fall cases?
A: Photogrammetry is the science of taking accurate measurements from photographs. In a trip-and-fall case, an expert can use it to calculate the height and size of a pavement defect from images of the scene — even when the original photos did not include a ruler — by using fixed reference points at the location. It can be invaluable when the hazard has been repaired or changed before it could be measured.
Q: What should I do after tripping on uneven pavement?
A: If you can, photograph the hazard from several angles and place something in the frame for scale, such as a coin, a shoe, or a ruler. Note the exact location, get the names and contact information of any witnesses, report the fall to the property owner or manager, keep the shoes you were wearing, and seek medical care promptly. Then speak with an attorney as soon as possible, because hazards are often repaired quickly.
Q: What is the "trivial defect" defense in California?
A: It is a rule that protects property owners from liability for very minor walkway defects. A court can find a defect “trivial” as a matter of law, but only after considering both the size of the defect and the surrounding circumstances — such as lighting, visibility, foot traffic, and whether anything concealed the hazard. There is no bright-line measurement, so whether a defect is trivial is often a question for the jury.
Q: Can a property owner use the fact that they fixed the hazard against my claim?
A: No. Under California Evidence Code section 1151, repairs or other safety measures taken after an incident cannot be used to prove the owner was negligent. That rule cuts both ways: it can keep helpful repair evidence out, but it does not prevent you from proving your case through other evidence, such as photographs, witness testimony, and expert analysis.
Q: What is photogrammetry, and how is it used in trip-and-fall cases?
A: Photogrammetry is the science of taking accurate measurements from photographs. In a trip-and-fall case, an expert can use it to calculate the height and size of a pavement defect from images of the scene — even when the original photos did not include a ruler — by using fixed reference points at the location. It can be invaluable when the hazard has been repaired or changed before it could be measured.
Q: What should I do after tripping on uneven pavement?
A: If you can, photograph the hazard from several angles and place something in the frame for scale, such as a coin, a shoe, or a ruler. Note the exact location, get the names and contact information of any witnesses, report the fall to the property owner or manager, keep the shoes you were wearing, and seek medical care promptly. Then speak with an attorney as soon as possible, because hazards are often repaired quickly.
DISCLAIMER
The results described above reflect the specific facts of one client's case. Past results do not guarantee or predict the outcome of any other matter; every case is different. This page is attorney advertising and is provided for general information only — it is not legal advice and does not create an attorney-client relationship.
DISCLAIMER
The results described above reflect the specific facts of one client's case. Past results do not guarantee or predict the outcome of any other matter; every case is different. This page is attorney advertising and is provided for general information only — it is not legal advice and does not create an attorney-client relationship.
DISCLAIMER
The results described above reflect the specific facts of one client's case. Past results do not guarantee or predict the outcome of any other matter; every case is different. This page is attorney advertising and is provided for general information only — it is not legal advice and does not create an attorney-client relationship.
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About the Author
About the Author
Noah Schwinghamer
Noah Schwinghamer
Noah Schwinghamer is the founding attorney of Schwinghamer Law in Stockton, California. With over a decade of experience in personal injury law, Noah is dedicated to helping individuals and families stand up to powerful insurance companies and recover the compensation they deserve. He has successfully taken on major insurers, Fortune 500 companies, and government entities — and has recovered millions of dollars for his clients. His mission is simple: leave every client better than he found them.
Hurt in a Fall on Unsafe Property? We're Here to Help.
Hurt in a Fall on Unsafe Property? We're Here to Help.
A serious fall can happen anywhere — a store, a parking lot, an apartment complex, or a public venue — and property owners don't always take responsibility. If you were injured because of an unsafe condition on someone else's property, Schwinghamer Law can investigate what happened and pursue the compensation you deserve, with the clarity, compassion, and courtroom experience these cases require. Your consultation is always free.
A serious fall can happen anywhere — a store, a parking lot, an apartment complex, or a public venue — and property owners don't always take responsibility. If you were injured because of an unsafe condition on someone else's property, Schwinghamer Law can investigate what happened and pursue the compensation you deserve, with the clarity, compassion, and courtroom experience these cases require. Your consultation is always free.
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© 2025 All Rights Reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
© 2025 All Rights Reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
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Stockton Office
7400 Shoreline Dr. #5
Stockton, CA 95219
(209) 425-2520
Popular Links
Car Accident
Truck Accident
Airplane Accident
Head & Brain Injury
Spine Injury
Dog Bite
Wrongful Death
© 2025 All Rights Reserved. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.