Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC 084224. Valerie L. Baker, Judge.
Masry & Vititoe, James W. Vitite and Jeffrey T. Bell for Plaintiff and Appellant.
Marsha Jones Moutrie, City Attorney, Jeanette Schachtner, Deputy City Attorney, for Defendant and Respondent City of Santa Monica.
Horvitz & Levy, David M. Axelrad, Wendy S. Albers and Kim Nguyen; Yoka & Smith, Cristophe E. Faenza and Peter W. Felchlin for Defendant and Respondent Lisa Green.
ROTHSCHILD, J.
Plaintiff Eugene Burke sued the City of Santa Monica (City) and Lisa Green (Green), the owner of Ladd’s Liquor Store (Ladd’s) for injuries he received when he tripped and fell over a three-quarter inch berm in the sidewalk in front of the store. The trial court granted the defendants’ motions for summary judgment. Based on our independent review of the evidence, we find that at most the defect in the sidewalk posed a minor risk of injury and therefore did not create liability on the part of defendants. Accordingly, we affirm the judgment.
FACTS AND PROCEEDINGS BELOW
At approximately 7.30 p.m. on March 19, 2004, Burke, intending to buy a lottery ticket at Ladd’s, walked through Ladd’s parking lot and onto the public sidewalk in front of the store. Near the point where the parking lot ends and the sidewalk begins, Burke tripped over a three-quarter inch berm created by an asphalt patch in the cement portion of the sidewalk. He fell, suffering injuries to his wrists, knees and face.
Burke sued the City and Green, claiming that each was guilty of negligence in causing, maintaining and failing to warn of a dangerous condition on the sidewalk. Defendants answered and moved for summary judgment.
In support of their motions for summary judgment, the defendants presented undisputed evidence that the sidewalk where Burke alleges he tripped was elevated approximately three-quarters of an inch. At the time of the accident, the lights in front of the store and along the side adjacent to the parking lot were lit. A street light located approximately 25 feet from the site of Burke’s fall was lit when a city police officer conducted an investigation shortly after the accident. The berm was created in September 2003 when the city applied an asphalt patch to the sidewalk. Between that time and Burke’s accident in March 2004, no trip and fall incidents at that location had been reported to the city.
In response, Burke conceded that there were no leaves, debris, trash or liquid in the area where he tripped. He did not concede that the street light was lit at the time of the accident but he did not present any evidence to the contrary. Burke asserted “the photographs” demonstrated there was a jagged edge along the berm but he did not specify which photographs showed this hazard.
The trial court granted defendants’ motions for summary judgment and entered judgment for defendants. Burke filed a timely appeal. Our review is de novo. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
DISCUSSION
A public entity is not liable for an accident caused by a sidewalk defect which is “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 when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.) The same rule applies to actions against private landowners. (Kasparian v. Avalon Bay Communities, Inc. (2007) 156 Cal.App.4th 11, 27.) Where the facts concerning the defect are not in dispute, the court determines whether the defect was trivial as a matter of law. (Ibid.)
In determining whether a particular defect is trivial, size is important but not conclusive. The court should also consider “whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.” (Fielder v. City of Glendale (1977) 74 Cal.App.3d 719, 734.) An otherwise minor defect may be actionable if the elevated portion of the sidewalk has jagged edges, the accident occurred at night in an unlighted area and other persons have been injured by this same defect. (Ibid.)
Many decisions have held that a three-quarter inch or even greater sidewalk elevation was minor. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 721 [three-quarters of an inch]; and see cases cited in Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74.) Therefore, the defendants met their initial burden and were entitled to summary judgment unless Burke produced evidence from which a reasonable person could conclude that a factor other than the height of the berm created a substantial risk of injury. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at pp. 733-734.)
Burke admitted that there were no leaves, debris, trash or liquid accumulated around the berm which might have contributed to the accident. He also conceded that a street light was located approximately 25 feet from the site of the accident. Although he does not concede that it was lit at the time of the accident, he does not dispute the investigating officer’s statement that the light was on when the officer arrived at the scene shortly after the accident. Nor does Burke dispute the evidence that at the time of the accident the area was illuminated by lights in front of the store and along the side adjacent to the parking lot. Burke speculates that the advertising sign outside the store “could have been obstructing and blocking the light projecting from [the other] lights” but he offered no evidence to support the claim. Finally, Burke does not dispute the city’s evidence that no other accidents had occurred at that location since the berm was created approximately six months earlier.
Burke contends photographs of the berm show that it was “somewhat jagged.” We have reviewed the photographs of the berm and are unable to say they depict a jagged edge.
Burke further argues that the berm was dangerous because a person could not avoid crossing it when walking from the parking lot into the liquor store. The pictures he placed in evidence, however, do not support his claim. Instead, they show that it is possible to go around the berm to get from the parking lot to the sidewalk without walking more than a few extra feet. And even if the pictures did support his claim, they only lend support to the conclusion that the berm did not create a dangerous condition: except for him, even persons forced to cross the berm did not trip or fall. Finally, Burke’s argument is based on the faulty premise that what makes a condition dangerous is the inability to avoid it. A raging river is dangerous because it is deep and fast, not because crossing it is the only way to the other side.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)