Summary
holding trivial a maximum three-quarter-inch sidewalk height differential
Summary of this case from Stack v. City of LemooreOpinion
B308741
07-27-2022
Monica NUNEZ, Plaintiff and Appellant, v. CITY OF REDONDO BEACH, Defendant and Respondent.
Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian and Adam Feit, Los Angeles, for Plaintiff and Appellant. Michel & Associates, C.D. Michel, Long Beach, Joseph Di Monda, Manhattan Beach, and Alexander A. Frank, for Defendant and Respondent.
Certified for Partial Publication.
Under California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts 1, 3, and 4 of the Discussion section.
Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian and Adam Feit, Los Angeles, for Plaintiff and Appellant.
Michel & Associates, C.D. Michel, Long Beach, Joseph Di Monda, Manhattan Beach, and Alexander A. Frank, for Defendant and Respondent.
EGERTON, J.
Monica Nunez appeals from the judgment entered against her after the trial court granted the City of Redondo Beach's (City) motion for summary judgment of her personal injury lawsuit. Nunez suffered injuries after she tripped on an elevated sidewalk slab within the City. The trial court dismissed her lawsuit after concluding the defect in the sidewalk was trivial as a matter of law, with no aggravating factors, and thus nonactionable under Government Code section 830 et seq. We agree with the trial court and affirm the judgment.
Undesignated statutory references are to the Government Code.
FACTS AND PROCEDURAL BACKGROUND
1. The parties and underlying incident
Nunez is the Vice President of Finance and Accounting at a restaurant chain, as well as a part-time fitness instructor for a gym. On February 25, 2017, Nunez went for a group run on Redondo Beach. At about 10:45 a.m., Nunez—wearing her running shoes—walked back to her car on a public sidewalk along the west side of South Catalina Avenue near or in front of the residence at 1003 South Catalina Avenue, Redondo Beach. As she was walking, her back foot hit a raised sidewalk slab causing her to trip and fall forward to the ground. Nunez landed on her left knee and right arm, fracturing her kneecap and elbow. At the time of the incident, Nunez was in her early forties. The City is the municipal entity responsible for the sidewalk where Nunez tripped and fell.
Nunez fractured her "radial head" and "coronoid process." The fractures required surgery.
On February 28, 2018, Nunez sued the City, alleging causes of action for dangerous condition of public property under section 835, negligence under section 815.2, and failure to perform a mandatory duty under section 815.6.
Nunez also sued the County of Los Angeles and Vazmenka Milovic, who allegedly maintained the property adjacent to the sidewalk. They are not parties to this appeal.
2. The City's motion for summary judgment
After answering the complaint, the City filed a motion for summary judgment on the ground the raised sidewalk slab was a trivial defect as a matter of law, and Nunez failed "to testify to or adduce any evidence that aggravating circumstances existed" to raise a triable issue as to the trivial nature of the defect. In support of its motion, the City submitted the declaration of Frank Contreras, the City's Public Works Manager – Streets/Sewer & Storm Drains, who oversees the maintenance and repair of sidewalks in the City, including where Nunez fell.
Contreras held that same position when Nunez tripped in February 2017.
After the City received notice about Nunez's lawsuit, Contreras visited the area where Nunez fell. He "quickly noticed" one segment of the sidewalk appeared defective. He measured "the displacement," which he declared ranged from zero "to 5/8ths of an inch, perhaps a millimeter more," and took a photograph. Contreras saw no other defects in the sidewalk, "such as cracks, jagged edges, holes, loose concrete, or anything other than the height displacement." Based on Contreras's review of the City's records, there had been no earlier complaints, notices, or lawsuits involving the same sidewalk defect. The City also submitted Nunez's deposition establishing that when she fell it was sunny, not dark or gloomy, she had nothing in her hands and was "normal walking, ... looking ahead," and she did not see the sidewalk defect while she was walking. Nunez also testified she exercised at the beach every Saturday but had never walked through the area where she tripped because she usually parked on a different street.
After Nunez fell and "a while of l[y]ing there," she looked to see what caused her to trip and fall and saw that the corner of the sidewalk was raised. There was no liquid or sand on the sidewalk. She remembered there was a tree near the defect but did not recall seeing any branches or mulch or whether there were a lot of leaves in the area. Nor did she recall seeing any holes or chasms.
The City also submitted a black and white photograph, produced by Nunez's counsel during discovery, of the sidewalk with a circle drawn around two adjacent slabs in the row of slabs farthest from the street. Nunez confirmed the circle encompassed the general area where she fell and that the corner—where the north slab met the south slab—was raised.
The sidewalk consisted of two rows of slabs—one adjacent to the street and the other adjacent to property.
3. Nunez's evidence in opposition to the City's motion
In opposition to the City's motion, Nunez presented medical records, declarations from two forensic engineers, photographs of the incident scene, excerpts from the deposition of a City employee and her own deposition, as well as her own declaration.
On March 30, 2017, Benjamin Molnar, a forensic engineer at the safety and liability consulting firm Nunez's counsel retained, inspected the sidewalk where Nunez fell "under substantially similar lighting conditions to that which existed at the time of the incident." He took photographs and measurements of the sidewalk and attached photocopies of the photographs to his declaration. Molnar did not declare at what time of day he took the photographs, and there is no time stamp on the copies he attached.
The photographs Molnar took show the sun is shining and shadows—from a tree—are falling across the left side of the sidewalk, where it is raised. Photographs of a ruler next to different points along the offset measure the height differential at just under three-quarters of an inch, about 9/16ths of an inch, and about a half-inch. A shadow from the tree appears to cover the three points measured.
From our view, the ruler appears to measure the lift at 22/32nds of an inch high, or 11/16ths of an inch.
Mark J. Burns—a senior forensic engineer at the same firm and Nunez's retained safety and liability expert—reviewed the March 2017 photographs and measurements Molnar took. Burns also personally visited the site on February 14, 2020. Based on the photographs Molnar took, which Burns grouped and labeled as an exhibit to his declaration, Burns opined that the sidewalk uplift that caused Nunez's fall "presented an abrupt height differential of approximately 11/16 inches." Burns cited human ambulation studies that have shown "the minimum toe clearance of a pedestrian ... during normal walking stride is approximately 0.50 to 0.60 inches." He explained one study also "relat[ed] an unseen one-inch ... height differential to a trip occurring on almost every stride. Therefore, any abrupt height differential in excess of this magnitude has the substantial possibility of causing a pedestrian to trip and fall or misstep if the height differential is not conspicuous and readily observable in advance."
Molnar no longer worked at the firm.
Burns opined the "subject height differential presents a substantial risk of injury because it would have been difficult to perceive at the time of the incident." Burns noted (1) "the subject height differential was high enough to cause a trip event, but low enough that it would not be in plain sight"; (2) "there was no color or texture differentiation between the concrete slabs forming the height differential," further concealing its existence; and (3) astronomical data, in conjunction with the scene photographs from March 2017, "indicates that shadows cast on and around the subject defect from the adjacent tree(s), obscure the hazard." Burns thus concluded that "[s]ince there is a height differential higher than the average minimum toe clearance of pedestrians during normal ambulation, and an obscured hazard that is not readily apparent, ... the height differential and surrounding area pose a substantial risk of injury for pedestrians acting in a reasonable manner, and thus constituted a dangerous condition of public property at the time [of the] incident."
Michael Klein, the deputy director of Operations and Public Works, testified as the City's person most knowledgeable on designated topics. The City's Public Works Department is responsible for sidewalk maintenance—including fixing uplifts or side shifts in sidewalk concrete. A " ‘lift’ " or an "offset" is where "one panel is lifting higher than the adjacent panel next to it."
The City ground down sidewalk offsets as part of its sidewalk maintenance and repair work. In December 2019, however, it contracted with a company to grind sidewalk areas the City identified as needing repair. That contract provides the contractor will "eliminat[e] sidewalk tripping hazards by grinding or saw cutting concrete sidewalk panel offsets between the heights of 1/2 inch and 1-1/2 inches." Klein confirmed the City engineer set the criteria.
Before the incident, City employees inspecting sidewalks were instructed to note, in essentially a repair log, any offsets a "half inch or more." Klein explained that repair standard "could be" in part to eliminate a tripping hazard, but also because the City "like[d] to have even sidewalks around here, whether it's a tripping hazard or not." He did not know if the City ever had inspected the subject sidewalk before Nunez fell. But, if the three-quarter inch offset on the sidewalk where Nunez fell had been seen or reported, Klein "would expect that someone through [the City's] work order system" would have fixed it. Klein confirmed the City's sidewalk maintenance grinding crew had since ground down the offset on March 2, 2018, after receiving notice about Nunez's claim.
In a declaration signed February 25, 2020, Nunez attested she "tripped on a defect on the left side of the sidewalk that was obscured from my view, including as a result of shadows, and fell." She also declared that, when she fell, "I had occasion to observe the area where I fell, including the light conditions, shadows, and general condition of the area." She attached two photographs that she declared "fairly and accurately depict the conditions observed at the location and time of my fall." The photographs appear to be copies of two of the photographs Molnar took on March 30, 2017.
Nunez argued the offset constituted a dangerous condition under the City's policy that offsets half of an inch or greater were tripping hazards needing repair, and aggravating circumstances existed here—the existence of shadows, "with the continuity of the walking surface color[,] shrouded the defect," and Nunez was unfamiliar with the area—that substantially increased the risk that Nunez would fall.
4. The trial court's ruling
In advance of the September 4, 2020 hearing on the City's motion, the court issued a tentative ruling granting the motion. Both the City and Nunez had filed several evidentiary objections. The court sustained the City's objection to Burns's declaration, as an improper opinion, to the extent Burns opined that the sidewalk defect posed "a substantial risk of injury for pedestrians acting in a reasonable manner," and that it constituted "a dangerous condition." The court found Burns's other statements were appropriate factual conclusions for it to consider. The court also overruled the City's lack of foundation objection to Molnar's declaration, and the photographs attached to it, finding a proper foundation had been established.
Nunez does not challenge this, nor any, of the trial court's evidentiary rulings.
The City also objected to Nunez's declaration that the sidewalk defect "was obscured from my view, including as a result of shadows," on the ground it contradicted her deposition testimony and must be disregarded under D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 and Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 73 Cal.Rptr.3d 343. The City argued Nunez had never mentioned—in her deposition or written discovery responses—that shadows obscured her view of the defect. In overruling the City's objection, the court explained the deposition testimony the City cited did not directly contradict Nunez's declaration. She did not, for example, testify "there were no shadows at all." The Court noted Burns's testimony that—based on his review of the astronomical data—"shadows would have been cast over the area of this alleged defect at the time that the plaintiff indicated she was walking there," was "a fact I have to consider."
After hearing counsel's arguments, the court took the matter under submission. On September 15, 2020, the court filed its written order granting the City's motion for summary judgment, finding the City established the sidewalk offset was trivial as a matter of law, and Nunez failed to present evidence raising a triable issue of material fact. The court entered judgment in favor of the City on October 30, 2020, and Nunez appealed.
DISCUSSION
1. Summary judgment and standard of review
See footnote *, ante .
2. The doctrine of trivial defect
Under the Government Claims Act ( § 810 et seq. ) a public entity may be held liable for injuries caused by a dangerous condition on public property. ( §§ 830, 835.) A condition is "dangerous" if it "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." ( § 830, subd. (a).) Although generally a question of fact, a property defect is not a dangerous condition as a matter of law if the court determines, "viewing the evidence most favorably to the plaintiff, ... 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 ...." ( § 830.2 & Law Revision Commission Comments; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726–727, 139 Cal.Rptr. 876 ( Fielder ); see also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104–1105, 250 Cal.Rptr.3d 336 ( Huckey ) [summary judgment proper where reasonable minds could only conclude there was no substantial risk of injury, but court may not find defect trivial as a matter of law where evidence presented shows reasonable minds could differ as to whether defect presents a substantial risk of injury].)
Thus, "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 (2011) 200 Cal.App.4th 383, 388, 132 Cal.Rptr.3d 617 ( Cadam .) This principle, referred to as the "trivial defect doctrine" or the " ‘trivial defect defense,’ " is not an affirmative defense, but "an aspect of duty that a plaintiff must plead and prove." ( Huckey, supra , 37 Cal.App.5th at p. 1104, 250 Cal.Rptr.3d 336 ; Cadam , at p. 388, 132 Cal.Rptr.3d 617.) That is so because a property owner's duty of care "does not require the repair of minor or trivial defects." ( Cadam , at p. 389, 132 Cal.Rptr.3d 617 ; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398, 237 Cal.Rptr. 413 ( Ursino ) ["persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition"].)
In the sidewalk-walkway context, "[t]he decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial." ( Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, 19 Cal.Rptr.3d 254 ( Caloroso ); see also Huckey, supra , 37 Cal.App.5th at p. 1105, 250 Cal.Rptr.3d 336 ["court 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"].) Rather, "[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. [Citation.] 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 a pedestrian's view of the defect." ( Caloroso , at p. 927, 19 Cal.Rptr.3d 254.) "[T]he 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 , at p. 1105, 250 Cal.Rptr.3d 336.)
Thus, our analysis of whether the sidewalk defect here is trivial as a matter of law involves two steps. First, we review evidence of the " ‘type and size of the defect.’ " ( Huckey, supra , 37 Cal.App.5th at p. 1105, 250 Cal.Rptr.3d 336.) If that analysis reveals a trivial defect, we then consider " ‘evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person,’ " then we will " ‘deem the defect trivial as a matter of law.’ " ( Id. at p. 1105, 250 Cal.Rptr.3d 336, quoting Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567–568, 78 Cal.Rptr.3d 910 ( Stathoulis .) 3.-4.
See footnote *, ante .
5. The City's policy to repair sidewalk tripping hazards greater than a half-inch does not create a triable issue as to the triviality of the offset
Nunez also contends the City undertook a duty to repair sidewalk offsets greater than a half-inch, like this one, which the City considered a tripping hazard. She argues that because the City admitted the offset here met the criteria for repair under the City's policy, it cannot be said that no reasonable person could find the offset created a substantial risk of injury. It is undisputed that, had the City seen the offset on the sidewalk before Nunez fell, it would have repaired it. The City in fact repaired the sidewalk in March 2018 after receiving notice of Nunez's lawsuit.
We cannot agree the City's policy that sidewalk height differentials between a half-inch and one-and-a-half inches should be repaired—in part because they are tripping hazards—renders the nonalignment of the sidewalk slabs here a dangerous condition as contemplated by sections 830 and 830.2. "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, 19 Cal.Rptr.3d 254.) Moreover, in the absence of a constitutional requirement, only the legislature can create public entity liability. ( Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409, 205 Cal.Rptr. 1 ["public entities may be liable only if a statute declares them to be liable"].) Nunez nevertheless relies on Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 155 P.2d 633 ( Laurenzi ) for the proposition that a public entity's determination that a sidewalk defect is hazardous and in need of repair precludes finding the defect trivial as a matter of law. Laurenzi is distinguishable. There, the California Supreme Court found substantial evidence supported the jury's verdict that the sidewalk defect in that case was a dangerous condition of which the City had constructive notice. ( Id. at pp. 810–812, 155 P.2d 633.) The plaintiff in Laurenzi fell when he slipped, and his foot became wedged in a hole in the sidewalk. ( Id. at pp. 807–808, 155 P.2d 633.) The hole was significantly larger than the offset here—up to two and a half inches deep, two inches wide at one end and up to six inches wide at the other end, and a foot long. ( Id. at p. 811, 155 P.2d 633.) Moreover, contrary to the conditions here, at the time the plaintiff in Laurenzi fell, it was dark and only one light lit the area; the sidewalk was wet with carrot top debris scattered over it; and vegetable crates were stacked on either side of the hole. ( Id . at p. 808, 155 P.2d 633.) The city inspector, who did not notice the hole during his inspection, testified that, if he had seen a condition like the one described and photographed, he would have considered it hazardous and repaired it. ( Id. at pp. 811–812, 155 P.2d 633.) Based on that evidence, the court concluded, "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." ( Id . at p. 812, 155 P.2d 633.)
The Laurenzi court did not hold, however, that the city's admission that a particular defect may be dangerous creates a triable issue of fact as to whether an otherwise trivial defect constitutes a dangerous condition. There, the evidence supported finding the defect was likely to cause substantial injury: it was a large hole, obstructed from view. In contrast to two inches, the height differential here was at most three-quarters of an inch. And, none of the aggravating factors present in Laurenzi were present here: Nunez fell in mid-morning, on a sunny day; the sidewalk was dry with no debris covering the defect; and the defect was not obscured from view as Nunez approached it.
The height differential here posed some risk of injury; despite her athleticism, Nunez suffered significant injuries when she tripped on it. And, the evidence, viewed in the light most favorable to Nunez, supports a reasonable inference that height differentials greater than a half-inch pose a tripping hazard to walkers. But, the City does not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard—only those defects that create a substantial risk of injury to a pedestrian using reasonable care. (See Huckey, supra , 37 Cal.App.5th at pp. 1109–110, 250 Cal.Rptr.3d 336 [height differential "posed some risk of injury" and evidence supported inference that height differentials like the one at issue posed a tripping hazard, but "to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed ‘a substantial ... risk of injury’ "].) Indeed, in the cases we have cited where the court concluded a defect was trivial as a matter of law, the complaining plaintiff was injured. Accordingly, although the City may have thought offsets of the size here posed a tripping hazard, the evidence does not support finding the defect posed a substantial risk of injury.
The trial court did not err in finding the sidewalk offset was trivial as a matter of law and no aggravating factors created a triable issue as to whether the offset created a substantial risk of injury at the time Nunez fell.
We thus need not address the City's contentions that the trial court should have sustained its objection to Nunez's declaration about shadows, and that, because Nunez did not amend her complaint to allege shadows, color differentiation, or her unfamiliarity with the area were aggravating factors in her fall, we should disregard her argument about those factors. We also need not consider Nunez's contention that a material dispute exists as to whether the City had notice of the defect.
DISPOSITION
The judgment is affirmed. Respondent the City of Redondo Beach is to recover its costs on appeal.
We concur:
LAVIN, Acting P. J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.