Opinion
B304821
10-08-2021
CHARLOTTE ESSEX, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent.
Law Office of Herb Fox and Herb Fox; The Dominguez Firm and Martin J. Kanarek for Plaintiff and Appellant. Burke, Williams & Sorensen, Michael R. Nebenzahl and Charles H. Abbott; Michele Beal Bagneris, City Attorney and John W. Nam, Deputy City Attorney for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC663935, Laura A. Seigle, Judge. Affirmed.
Law Office of Herb Fox and Herb Fox; The Dominguez Firm and Martin J. Kanarek for Plaintiff and Appellant.
Burke, Williams & Sorensen, Michael R. Nebenzahl and Charles H. Abbott; Michele Beal Bagneris, City Attorney and John W. Nam, Deputy City Attorney for Defendant and Respondent.
MOOR, J.
Plaintiff and appellant Charlette Essex appeals from a summary judgment in favor of defendant and respondent City of Pasadena (the City) in this personal injury action. The trial court found a height differential in a sidewalk pavement where Essex fell was a trivial defect as a matter of law. On appeal, Essex contends that whether the sidewalk was in a dangerous condition is a triable issue of fact based on the height of the defect, the City's identification of the defect as a trip hazard in need of repair, and other aggravating factors. We agree with the trial court that the defect in this case was trivial as a matter of law. Therefore, we affirm.
FACTS
In 2014 and 2015, the City conducted a survey of its sidewalks and identified six types of defects for repair, including any step elevation in a concrete sidewalk that was three-fourths of an inch or higher. A nonalignment of concrete slabs in the sidewalk at 737 South Oakland was a condition identified for repair by the survey, but no repair had been completed by the time relevant to this case. No complaint or injury claim was made to the City about this defect prior to Essex's fall.
On the morning of April 30, 2016, Essex was visiting Pasadena from Florida. She walked over the nonalignment in the sidewalk to view a yard sale without noticing the defect. There was a thin line of concrete residue along the side of the higher slab, no more than a few millimeters deep at most, but there was no broken concrete, debris, or other obstruction on the sidewalk. On her way back to her car around 9:30 a.m., Essex was concentrating on a woman approaching her on the sidewalk, and Essex tripped on the height differential between the concrete slabs. Paramedics responded and marked the spot where Essex tripped with a large “X”. Essex was taken to a hospital with a concussion and other physical injuries.
Police officer Matthew Morgan arrived after Essex had been taken to the hospital. He took photographs and measured the height differential where the pavement had been marked. According to Morgan's measurements, the differential in the marked area was l.25 inches at one end and 1.5 inches on the other end. Morgan wrote “approximate” on his report because when he measured the defect, he was looking at it from an angle while holding the measuring tape and camera. In his deposition, Morgan stated that his measurements were an estimate.
On October 24, 2016, the City measured the height differential of the slab at six inch intervals and took photographs with each measurement. The defect measured 15/16 of an inch (0.9375 inches) at its lowest and 22/16 inches (1.375 inches) at its highest. The following day, the City issued a work order requesting repair. The comments section of the order stated, “[t]rip hazard on sidewalk front of 737 S. Oakland.” On October 26, 2016, a form closing the repair request classified the sidewalk issue as a “trip hazard” and indicated the repair was completed.
Essex later took the deposition of the City's associate engineer Morley Saraiya. Referring to the October 2016 forms that had characterized the defect as a trip hazard, Essex's counsel asked Saraiya, “You agree[] with the Merriam Webster definition that a trip hazard is a source of danger; true?” Saraiya responded “yes.” Essex's counsel also asked, “[The conditions identified in the survey] should be repaired because it may be dangerous to someone walking on the sidewalk; true?” Saraiya responded “yes.” Essex's counsel asked whether it was fair to say that the City identified defects of three-fourths of an inch or higher as needing repair because such a defect “may be unsafe for somebody walking on the sidewalk” and Saraiya responded “yes.”
PROCEDURAL HISTORY
On June 7, 2017, Essex filed a complaint for damages against the City alleging a dangerous condition of public property. The City filed a motion for summary judgment on the ground that there was no dangerous condition of public property. The City argued that the defect did not constitute a “dangerous condition” under Government Code section 830 because under the circumstances, it was minor, trivial, and insignificant in nature and posed no substantial risk of injury to a person exercising due care.
All further statutory references are to the Government Code unless otherwise stated.
Essex filed an opposition arguing there were triable issues of fact as to the nature of the defect based on evidence that the height differential was 1.5 inches and the City's admission that it was dangerous. Essex further argued that aggravating factors made the defect a dangerous condition.
In support of the opposition, Essex submitted a declaration from Mark Burns, a forensic engineer with experience in accident reconstruction. Burns opined that the defect presented an abrupt height differential in excess of 1.125 inches, which created a substantial possibility of causing a pedestrian to trip and fall. He further opined that the height differential was exacerbated by the jagged and irregular nature of the exposed surface, because the protruding concrete residue on the edge of the slab could grab or trap a pedestrian's foot upon contact. He stated the height differential would have been difficult to perceive when Essex fell; even though it was high enough to trip a pedestrian, it was low enough to be undetected.
In reply, the City argued that under the relevant case authorities, the defect at issue was not a dangerous condition of public property as a matter of law. Essex's action of looking at the woman approaching Essex, rather than looking to where she was stepping, was the reason Essex tripped, since the defect did not present a substantial risk of injury.
The trial court issued a tentative ruling in favor of granting the motion for summary judgment, and at a hearing on the motion, Essex's counsel argued that the trial court's tentative ruling erroneously made unfavorable inferences against Essex. After taking the matter under submission, the trial court entered an order granting the City's motion for summary judgment on the ground that the defect was trivial as a matter of law. The trial court entered a judgment dismissing Essex's complaint, and Essex filed a timely notice of appeal from the judgment.
DISCUSSION
Standard of Review
“A motion for summary judgment is to be granted ‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears an initial burden of showing that the plaintiff's causes of action have no merit, and the defendant meets this burden by making a prima facie evidentiary showing that one or more elements of each cause of action cannot be established, or there is a complete defense to each cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-851 (Aguilar); Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets its initial burden, the burden shifts to the plaintiff to produce evidence of a triable issue of material fact concerning the challenged element or defense. (Aguilar, supra, [25 Cal.4th] at pp. 849-851; Code Civ. Proc., § 437c, subd. (p)(2).) ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Aguilar, supra, at p. 850.)” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103 (Huckey).)
“An order granting summary judgment is reviewed de novo, and the appellate court considers all of the evidence adduced on the motion (except evidence that the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The appellate court must liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Zubillaga v. Allstate Indemnity Co. (2017) 12 Cal.App.5th 1017, 1021.)” (Huckey, supra, 37 Cal.App.5th at p. 1103.)
Statutory Scheme
The City may be held liable if a defect constituted a dangerous condition of public property. Section 830, subdivision (a), defines a “dangerous condition” as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”
Section 830.2 further addresses minor, trivial, or insignificant risks, explaining: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that 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 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.”
Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
The Trivial Defect Doctrine
Essex contends there are triable issues of fact because reasonable minds may differ as to whether the defect was trivial and there is evidence of aggravating factors that made the defect dangerous. We disagree.
The trivial defect doctrine originated to shield public entities from tort liability for defective conditions on public property that are so minor, trivial, or insignificant under the circumstances that no reasonable person would conclude there was a substantial risk of injury when the property was used with due care. (Huckey, supra, 37 Cal.App.5th at p. 1104.) The plaintiff must plead and prove that the defect was not trivial; the trivial defect doctrine is not an affirmative defense. (Ibid.)
“In appropriate cases, the trial court may determine, and the appellate court may determine de novo, whether a given walkway defect was trivial as a matter of law. (§ 803.2; [Citation].) ‘Where reasonable minds can reach only one conclusion-that there was no substantial risk of injury-the issue is a question of law, properly resolved by way of summary judgment.' (Caloroso v. Hathaway [(2004)] 122 Cal.App.4th 922, 929 (Caloroso).) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. [Citation.]” (Huckey, supra, 37 Cal.App.5th at. p. 1104-1105.)
A court's analysis of whether a walkway defect is trivial involves two essential steps. (Huckey, supra, 37 Cal.App.5th at p. 1105.) “‘First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury].'” (Ibid.)
In Huckey, the appellate court held that under the circumstances presented by the evidence, at the time Huckey fell, the sidewalk defect in that case was trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1108.) The defect consisted of a height differential between two sidewalk panels that ranged from 9/16 of an inch at its lowest to one and 7/32 inches at its highest. (Ibid.) The court noted, “There were no broken concrete pieces or jagged concrete edges in the area of the height differential when plaintiff fell, and plaintiff adduced no evidence that the [city] had ever been notified of any trip and fall accidents, other than plaintiff's claim, on or near the area of the height differential.” (Id. at p. 1098.) Huckey fell during the day, while the weather was sunny and dry. (Id. at 1109.) Further, there was no evidence that the defect or Huckey's view had been obstructed by dirt, debris, or shadows. (Ibid.)
The Huckey court concluded “the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and, therefore, would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care' at the time plaintiff fell. (§§ 830, 830.2.) To be sure, the height differential posed some risk of injury. Construed in the light most favorable to plaintiff, the record supports a reasonable inference that height differentials higher than one-half inch pose a trip hazard to pedestrians. But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed ‘a substantial (as distinguished from a minor, trivial or insignificant) risk of injury' when ‘used with due care in a manner in which it is reasonably foreseeable that it will be used.' (§ 830; see § 830.2.) On this record, this standard was not met.” (Huckey, supra, 37 Cal.App.5th at pp. 1109-1110, fn. omitted.)
A. Defect was Trivial
The undisputed evidence here shows the defect in this case was trivial as a matter of law. As in Huckey, Essex tripped on a nonalignment between two adjoining sidewalk panels during the day on a dry sidewalk. Her view of the defect was unobstructed, and the City had not received complaints of any accidents involving that defect prior to Essex's claim. Officer Morgan's approximate measurement of the defect, which estimated the height differential to be 1.5 inches, was not inconsistent with the City's more accurate measurement showing the differential at its highest point was 1.375 inches. Moreover, even assuming Officer Morgan's approximation could be construed as an accurate measurement showing a differential of 1.5 inches, this alone would not create a triable issue of fact. “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107.) This type of defect has been described as a “mere depression between two adjoining slabs.” (Fielder v. City of Glendale (1977)71 Cal.App.3d 719, 726.) Essex has not raised a material issue of disputed fact based on the size of the defect: applying Huckey, we find the defect did not pose a substantial risk of injury to a pedestrian exercising due care, but rather was trivial as a matter of law.
Essex next contends that she has raised a triable issue of material fact because the evidence showed that the City applied a three-fourths of an inch standard to determine whether a sidewalk height differential created a dangerous condition. We disagree. Although the City had identified by 2015, as part of its survey, the nonalignment of the pavement in this precise location, and designated the nonalignment for repair, that determination was not equivalent to a determination that the nonalignment is a dangerous condition of public property within the meaning of the relevant statutes. The City may identify a minor condition for repair before the condition deteriorates. It is not reasonable to infer from the City's repair standard that the City considered all height differentials of three-fourths of an inch or greater to constitute dangerous conditions as defined by the Government Code.
Essex also asserts that the City admitted the defect was dangerous, and therefore, reasonable minds may differ as to whether the defect was trivial. Essex's contention is based on a mischaracterization the evidence. In October 2016, after Essex tripped on the defect, the City classified it as a “trip hazard” in forms requesting repair. Although a City engineer, Saraiya, testified in deposition testimony that a trip hazard is a source of danger to pedestrians using the sidewalk, a danger of tripping does not equate to a dangerous condition of public property as defined by sections 830 and 830.2. A pedestrian who is not using due care may trip on a sidewalk defect that is otherwise trivial. Saraiya's opinion that a defect of three-fourths of an inch or higher is dangerous does not supersede the meaning of the relevant statutes, and the case authorities interpreting them, nor does that opinion preclude our conclusion that the defect on which Essex stumbled is trivial. (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389, as modified Oct. 28, 2011 (Cadam).) “It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Fielder, supra, 71 Cal.App.3d at p. 732 .) The City classified the defect as a trip hazard after Essex tripped on it, but such classification is not evidence that reasonable minds may differ as to whether the defect was trivial or a dangerous condition of property.
Essex relies on Laurenzi v. Vranizan (1945) 25 Cal.2d 806 (Laurenzi) for the proposition that a court cannot find a defect to be trivial as a matter of law if the public entity identified the defect as a hazard needing repair, but Laurenzi is distinguishable. In Laurenzi, viewing the evidence in the light most favorable to the plaintiff, the California Supreme Court found there was substantial evidence to support the jury's verdict that the sidewalk defect in that case was a dangerous condition of which the city had constructive notice. (Laurenzi, supra, 25 Cal.2d at pp. 808-809.) Plaintiff Laurenzi was walking on the sidewalk around 4:25 a.m. when he slipped and his foot became wedged in a hole in the sidewalk, causing him substantial injuries. (Laurenzi, supra, 25 Cal.2d at pp. 807-808.) At the time of his injury, it was dark and only one light illuminated the area. (Ibid.) The sidewalk was wet, carrot top debris was scattered over it, and there were vegetable crates stacked on either side of the defect. (Id. at p. 807-808.) The hole in the sidewalk was one foot in length and up to two and a half inches deep. (Id. at p. 811.) The width of the hole was two inches on one end and up to six inches on the other end. (Id. at p. 811.) The city inspector had failed to notice the defect during his most recent inspection, and he testified that if he had seen a condition like the one described and pictured, he would have considered it hazardous and requiring repair. (Id. at. p. 812.) The Laurenzi court found that the city inspector's failure to notice the defect did not mean the city had no notice that the defect was dangerous, because the city inspector testified that he would have considered the defect hazardous and requiring repair if he had seen it. The Laurenzi court considered the evidence sufficient to support the jury's verdict that the defect was dangerous and the city had constructive notice of the defect's dangerous character. (Ibid.) Based on the evidence, the court stated, “it cannot be said as a matter of law that the defect was such a minor defect to be insufficient to impose liability upon the city.” (Ibid.)
The Laurenzi court did not hold, however, that an admission by the city that a particular sidewalk defect may be dangerous to a pedestrian creates a triable issue of fact as to whether an otherwise trivial defect constitutes a dangerous condition of public property, regardless of the surrounding circumstances or whether the sidewalk was used with due care in a foreseeable manner. In Laurenzi, the evidence supported finding that the defect was a dangerous condition, because it was a large hole in the sidewalk that was obstructed from view. The city inspector failed to see it in his inspection, but admitted that he would have considered it hazardous and requiring repair if he had seen it, which the Laurenzi court found sufficient to impart constructive notice to the city of the dangerous nature of the condition.
In this case, the defect was a vertical nonalignment of 1.375 inches, and none of the aggravating factors in Laurenzi were present. Saraiya's deposition testimony that the condition may be a source of danger to a pedestrian and may be dangerous were not sufficient to create a triable issue of fact under the circumstances. “It is impossible to maintain heavily traveled surfaces in perfect condition. Minor defects such as the [nonalignment] in [the City's sidewalk] inevitably occur, and the continued existence of such [nonalignments] without warning or repair is not unreasonable.” (Caloroso, supra, 122 Cal.App.4th at p. 929.) “The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.) Therefore, we agree with the trial court that the defect in this case was trivial as a matter of law.
B. No Aggravating Factors
Essex contends that the defect was dangerous due to the following aggravating factors: (1) the defect's height exceeded one inch, (2) the line of concrete residue could grab or trap a pedestrian's foot, and (3) Essex's unfamiliarity with the area. We conclude that none of the factors identified by Essex support finding a triable issue of material fact.
“[W]here the defect goes beyond a mere depression between two adjoining slabs and consists of potholes, jagged breaks and cracks or also contains the presence of foreign substances such as grease and oil, then it can not be said that the defect is trivial and minor as a matter of law.” (Fielder, supra, 71 Cal.App.3d at p. 726.) Other aggravating factors courts consider are the plaintiff's knowledge of the area, the weather at the time of the accident, whether the defect was caused by artificial means, whether the accident occurred at night in an unlighted area, and whether the defect has caused any other accidents. (Id. at p. 732-734; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567 (Stathoulis).) “‘If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law....' [Citation.]” (Huckey, supra, 37 Cal.App.5th at pp. 1105.)
A defect's size is not an aggravating factor; it is relevant in the initial analysis to determine whether a defect is trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105; see Stathoulis, supra, 164 Cal.App.4th at p. 567 [court first reviews evidence of the defect's size, and if the analysis reveals a trivial defect, the court then considers any additional factors].) The fact that the defect's height exceeded one inch is not an aggravating factor that makes the defect a dangerous condition of property.
Essex also contends that the line of jagged, rough concrete residue made the defect dangerous. The photographs submitted by both parties show a minor amount of concrete residue on the edge of the slab at most a few millimeters thick. Although Essex's expert witness declared that the concrete residue created a protruding lip that could grab or trap a pedestrian's foot, the court can make this judgment for itself. (Caloroso, supra, 122 Cal.App.4th at p. 928; see Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705 [providing that even if a witness can be found to opine that a condition is a dangerous condition, the court must independently evaluate the circumstances as required by section 830.2].) The amount of residue was minor, and there was no evidence that Essex's foot was grabbed or trapped by the concrete residue on the edge of the slab, causing her to fall. “We conclude that the expert testimony and photographs regarding the [concrete residue] do not create a triable issue whether there was a substantial risk of injury.” (Caloroso, supra, at p. 928.)
Lastly, Essex avers that her unfamiliarity with the sidewalk is an aggravating factor that precluded finding the defect trivial as a matter of law. We disagree. Regardless of whether Essex had previously traversed the sidewalk, the defect was both minor and obvious, making it easily avoidable by a pedestrian exercising due care while walking. Evidence of Essex's knowledge of the area has little, if any, significance under these circumstances. We agree with the trial court that the evidence established the defect was trivial as a matter of law and there were no aggravating factors at the time Essex fell. Therefore, we affirm the judgment.
DISPOSITION
The judgment is affirmed. Respondent City of Pasadena is awarded its costs on appeal.
We concur: RUBIN, P.J., KIM, J.