No liability for trivial defects in sidewalks

A recent case from the Second District Court of Appeals, Nunez v. City of Redondo Beach (7/27/22) 2022 WL 2965453) is instructive on the liability of landowners for injuries to persons injured due to a trivial defect in a sidewalk or other walkway. While most of the litigated cases involve government property, especially public sidewalks, the doctrine applies equally to non-governmental defendants. Ursing v. Big Boy Restaurants of America (1987) 192 Cal. App. 3d 394, 396-97. Note that the "trivial defect doctrine," sometimes referred to as the "trivial defect defense," is not an affirmative defense to be raised by the defendant, but rather is an aspect of duty that the plaintiff must plead and prove. Nunez v. City of Redondo Beach (2nd DCA 7/27/22) 2022 WL 2965453 *5; Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1104; Cadam v. Somerset Gardens Townhouse HOA, supra, 200 Cal. App. 4th 383, 388-89.

The Government Code provides that a public entity may be held liable for injuries caused by a dangerous condition on its property. But Government Code section 830(a) provides that a public entity is not liable for injuries caused by the condition of the property if the risk created by the condition was of such a minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury.

A property owner, whether a public entity or a private person or company, is not an insurer of those who use its sidewalks, and it is impossible for a person to maintain heavily traveled surfaces in perfect condition. A property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property. Cadam v. Somerset Gardens Townhouse HOA, supra, 200 Cal App. 4th 383, 388. It is not enough that the defect poses some risk of injury; it must pose a substantial risk of injury. Huckey v. City of Temecula, supa, 37 Cal. App. 5th 1092, 1109-110.

In Ursing v. Big Boy Restaurants of America, the court stated that the property owner's duty of care does not require the repair of minor or trivial defects. Persons who maintain walkways, whether public or private, are not required to maintain them in absolutely perfect condition but in reasonably safe condition. Ursing, supra, 192 Cal. App. 3d 394, 398.

Minor defects such as differences in elevation are bound to occur in spite of the exercise of reasonable care by the party having the duty of maintaining the area involved. As one court stated, "persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects." Ursing v. Big Boy Restaurants of America, supra, 192 Cal. App. 3d 394, 415.

In the recent case of Nunez v. City of Redondo Beach, 2022 WL 2965453 (2nd DCA 7/27/22), the plaintiff had finished a group run at Redondo Beach and was returning to her car when her back foot hit a raised sidewalk slab, causing her to trip and fall forward to the ground, fracturing her left kneecap and right elbow. The plaintiff brought suit against the City of Redondo Beach, alleging causes of action for dangerous condition of public property under Government Code section 835, negligence under Government Code section 815.2, and failure to perform a mandatory duty as provided by Government Code section 815.6.

The City of Redondo Beach filed a motion for summary judgment on the ground that the raised sidewalk slab was a trivial defect as a matter of law, and that the plaintiff had failed to produce any evidence that aggravating circumstances existed to raise a triable issue as to the trivial nature of the defect. According to the City's pleadings, the displacement ranged from zero to 5/8ths of an inch, perhaps a millimeter more. When the plaintiff fell, it was sunny, not dark or gloomy, she had nothing in her hand and was walking normally, looking ahead, and did not see the sidewalk defect. Although the plaintiff was near the beach, there was no sand or liquid on the sidewalk; there was a tree in the area but no branches, mulch, or leaves were on the sidewalk. The plaintiff stated that she did not recall seeing any holes or chasms in the sidewalk. There had been no earlier complaints, notices, or lawsuits involving the same sidewalk defect. Although not raised in her previous pleadings, the Plaintiff contended in the summary judgment that the defect was obscured by a shadow.

After considering the "type and size" of the defect, the appellate court determined that it was trivial as a matter of law. The court did not find any additional factors indicating that the defect was sufficiently dangerous to a reasonable person and therefore found no error in the trial court's ruling.

Whether a defect is trivial or not is determined by looking at all of the facts of the particular case. For example, in the case of a nonalignment, break, or depression in the sidewalk, the triviality of the defect is not determined by a tape measure alone. Aggravating factors such as the shape and configuration of the defect, lighting, debris, a history of similar injuries, how long the defect has existed, the elements, tree roots, whether view of the defect was obstructed, or other circumstances surrounding the accident which might have made the defect more dangerous than its mere abstract depth would indicate. Ursing v. Big Boy Restaurants of America (1987) 192 Cal. App. 3d 394, 397.

In Huckey v. City of Temecula, the court ruled that summary judgment is proper where reasonable minds could only conclude there was no substantial risk of injury. However, the court may not find a defect trivial as a matter of law where the evidence presented shows that reasonable minds could differ as to whether the defect presented a substantial risk of injury. (2019) 37 Cal. App. 5th 1092, 1104-05.

The decision of whether a defect is dangerous as a matter of law does not rest solely on the size of the crack or change of elevation in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial. Caloroso v. Hathway (2004) 122 Cal. App. 4th 922, 927. Courts should not rely solely upon the size of the defect, although the defect's size may be one of the most relevant factors to the court's decision. Huckey v. City of Temecula, supra, 37 Cal. App. 5th 1092, 1105.

The court must consider all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease, or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed the plaintiff's view of the defect.

The plaintiff's knowledge of the area, the weather at the time of the accident, and whether the defect has caused any other accidents, are also factors courts have considered. Huckey, 37 Cal. App. 5th at 1105.

In Whiting v. City of National City, the California Supreme Court held that, as a matter of law, a defect in a sidewalk was trivial, the court noting that "[m]any thousands of people, including numerous city officials, had passed over this defect during the five years of its existence and no one had heretofore suffered from it to the extent of seeking redress against the city. The city is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident therefore." (1937) 9 Cal. 2d 163, 166.

When plaintiff's counsel is making a determination on whether to accept or prosecute a personal injury or wrongful death case based upon a defect in a sidewalk or other walkway, counsel is well advised to send an investigator out to the scene of the incident at approximately the same time of day as the potential client was injured to take measurements and photographs of the alleged defect and surrounding area. Municipalities and private insurers know the law and facts when it comes to trivial defects in sidewalks and will generally mount an aggressive defense.