HAMMOND v. Safeway Stores, Inc., a corporation, Defendant and Appellant.

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District Court of Appeal, Fourth District, California.

Sadie HAMMOND, Plaintiff and Respondent, v. CITY OF SAN DIEGO, a municipal corporation, et al., Defendants, Safeway Stores, Inc., a corporation, Defendant and Appellant.

Civ. 6449.

Decided: October 17, 1961

Luce, Forward, Hamilton & Scripps and Robert G. Steiner, San Diego, for appellant. Karpinski & Ferguson and Charles Elwyn Karpinski, San Diego, for respondent.

Defendant and appellant Safeway Stores, Inc. (hereinafter referred to as ‘Safeway’) appeals from a judgment in favor of the plaintiff and respondent, awarding $2,565.10 special damages and $8,000 general damages on account of plaintiff's injuries sufferred when she tripped and fell on a public sidewalk where it joined a driveway leading to the parking lot around one of defendant Safeway's stores. The case was tried by a judge, without a jury.

Plaintiff was injured about 10:40 a. m. on November 1, 1959, an overcast, cloudy, dry day. She was then 58 years old and was wearing a moderate cuban heel 1 1/4 inches in height when she fell. She testified that she was walking along the sidewalk and watching where she was going as she approached the driveway. Before she arrived at the driveway she observed a car approaching and she continued to watch to see whether it would turn into the driveway. Apparently it did not. She took a step forward and hit or stubbed her toe and fell, injuring herself. Plaintiff had not previously noted any defect in the sidewalk or driveway, but as she was lying on the ground after falling she observed a difference in the level between the sidewalk and the driveway at the point where she fell. At that point the edge of the driveway projected above the level of the sidewalk about 3/4 of an inch. The height of the projection varied from 1 1/4 inches at the edge of the sidewalk closest to the parking lot uniformly to the outer edge of the sidewalk where the driveway and sidewalk were flush, a distance of about 10 feet.

When the driveway was built, in about 1955, it was level with the sidewalk and was about 30 to 35 feet wide and was mainly used by automobiles and some trucks entering the Safeway parking lot. Before constructing the sidewalk, Safeway or its agent was required to obtain a special permit from the City of San Diego, due to the extra width of the driveway, which was necessary to accommodate customers trading and parking at its store. The employees of Safeway watered the grass and ice plant next to the sidewalk and driveway. The manager of the Safeway store testified that he or his employees made inspections from time to time of the parking lot and the driveways and that he had the duty of authorizing repairs to any of these areas, but he said that he had never noticed the defect before the day of the accident. After the accident, he inspected the area and saw the condition and the manager called their construction company (Cory and Long-worth, formerly defendants in this action) to repair it.

Plaintiff also sued the City of San Diego. In its findings of fact, the trial court stated that the City of San Diego was the owner of the driveway and sidewalk in question, but that Safeway and its agent had constructed it and Safeway had the duty of maintaining said areas and that the City had no actual or constructive knowledge of the defect.

The trial court in addition found that Safeway, for the special purpose and convenience of its patrons, caused to be constructed a certain driveway and sidewalk located at the southwest driveway to the parking lot of the Safeway store; that said driveway was not an ordinary driveway, but was an extra wide driveway requiring special permission for construction from the City of San Diego; that the duty of maintenance of said driveway and sidewalk, because of its special nature and use, was upon defendant Safeway; that the permit granted for the construction of said special-use driveway was conditioned upon its use for egress and ingress from a parking lot designed for the convenience and benefit of defendant Safeway, the adjoining property owner; that the defendant Safeway and its agents, servants and employees regularly inspected said parking lot and adjacent driveway; that some time prior to November 1957 said driveway became or was raised substantially and abruptly above the adjacent sidewalk area; that said raised portion was an abrupt difference, ranging between 1 1/4 inches to no difference over the length of the junction between the driveway and the sidewalk and also an abrupt difference of 3/4 inch in the area in which plaintiff fell; that said abrupt difference, bearing in mind the use by many vehicles of the said driveway and the necessity of pedestrians watching for said vehicles entering and exiting, constituted a substantial negligently maintained condition and that this condition was the direct and proximate cause of plaintiff's injuries; that about November 1, 1957, plaintiff caught her foot on the abrupt projection of said driveway and sidewalk and fell, causing certain injuries. Plaintiff contends, and the court found, that at the time she fell she was watching an oncoming vehicle which appeared to be turning into said driveway; that the question as to whether or not the defect was more than trivial was purely a question of fact, among other reasons because of the peculiar circumstances of the extra wide driveway and the duty of pedestrians, for their own safety, to watch for vehicles coming out of the parking lot and going into said parking lot; that defendant Safeway, in causing to be constructed the aforesaid special-use driveway, necessarily anticipated a certain amount of traffic; that pedestrians walking along said sidewalk in the middle of the block were entitled to assume the sidewalk to be in reasonably safe condition; that the abruptness of the defect was substantially different from similar curb differences in normal sidewalks; that the design of the particular sidewalk shows different angles which tend to mislead pedestrians as to where the sidewalk and driveway join; that the colors of the sidewalk and driveway are so similar as to preclude normal observation of any difference; that the break was abrupt and vertical and not a sloping break; that the evidence indicates that the difference in height occurred after the construction of the special-duty driveway; that the evidence proves that the defect had been in existence for a sufficient period of time for defendant Safeway to have knowledge of the defect, and a sufficient period of time, after acquiring knowledge of the same, to have remedied the condition; that employees of defendant Safeway who inspected the condition of the parking lot and surrounding area every working day had actual or constructive knowledge of the abrupt driveway difference. It then found that plaintiff exercised due care in ascertaining the conditions and was not guilty of contributory negligence and that Safeway was negligent in maintaining the special-duty driveway and adjacent sidewalk in a dangerous condition and that plaintiff sustained the damages mentioned.

On appeal, Safeway argues: (1) that the judgment is against the law in that, as a matter of law, Safeway had no duty to repair or maintain the sidewalk or driveway where plaintiff fell (citing such authority as Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929; Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569); (2) that the judgment is against the law in that Safeway had no notice, actual or constructive, of the alleged unsafe defect; that because it was trivial it did not constitute constructive notice to anyone (citing such authority as Oldenburg v. Sears, Roebuck & Co., 152 Cal.App.2d 733, 314 P.2d 33; Whiting v. City of National City, 9 Cal.2d 163, 69 P.2d 990; Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725); (3) that the judgment is against the law in that the alleged defect which plaintiff claims made her fall was, as a matter of law, trivial and created no duty of repair (citing Beck v. City of Palo Alto, 150 Cal.App.2d 39, 309 P.2d 125; Dunn v. Wagner, 22 Cal.App.2d 51, 70 P.2d 498; Ness v. City of San Diego, 144 Cal.App.2d 668, 301 P.2d 410); and (4) that the judgment is against the law in that it rests upon findings of fact which are necessarily inconsistent, in that it is expressly found that the City of San Diego had no actual or constructive knowledge of the defect, and then found that Safeway had actual or constructive knowledge of the defect (citing Andrews v. Cunningham, 105 Cal.App.2d 525, 233 P.2d 563; Hendriksen v. Young Men's Christian Ass'n, 173 Cal.App.2d 764, 344 P.2d 77).

Schaefer v. Lenahan, supra, 63 Cal.App.2d 324, 326, 146 P.2d 929, relied upon by defendant, states the general rule to be:

‘* * * in the absence of statute, there is no common law duty resting upon the owner or occupant of premises abutting on a public street to keep the sidewalk in repair. Consequently, in the absence of statute, it is well settled that such an abutting owner or occupant is not liable to travelers injured as a result of defects in the sidewalk, which defects were not created by the owner or occupant.’ (Citing cases.)

Exceptions to the general rule are noted in Sexton v. Brooks, 39 Cal.2d 153, 157, 245 P.2d 496, 498, where it is said:

‘There is, however, an exception to this rule, and plaintiff claims that the evidence brings this case within that exception. It has been held that an abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.’

Dunn v. Wagner, supra, 22 Cal.App.2d 51, 70 P.2d 498, arose out of an action for damages for personal injuries sustained by plaintiff from a fall alleged to have been caused by a rise in defendant's sidewalk at its junction with an adjoining sidewalk where the rise was 1/2 inch above the grade and the adjoining sidewalk was 1/2 inch below grade, making a total drop between the two sidewalks of one inch. The sidewalk also was slightly sloped to facilitate drainage. The court held that this was insufficient, as a matter of law, to show that the sidewalk was constructed for the special use and benefit of defendants and their tenants and not for the benefit of the public so as to bring the case within the rule that where it is maintained for the sole and exclusive benefit of the property owner a duty is cast upon him to keep it in repair.

In Clarke v. Foster's, Inc., 51 Cal.App.2d 411, 413, 414, 125 P.2d 60, 62, it was said:

‘Trivial defects, such as the expansion or contraction of metals, ordinarily bound to occur despite the exercise of ordinary care, may be beyond the control of the party responsible.’

In that case, it was held that a city ordinance requiring that openings of sidewalk elevators be covered with substantial iron doors ‘as nearly flush with the upper surface of the sidewalk as will permit proper drainage’ is not violated where an elevator doorway is fairly even with the sidewalk grade. The variation was about 7/16 inch and the court held this was a trivial defect.

Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977, involved a case where the injuries sustained resulted when plaintiff tripped on a ridge of asphalt filler material protruding above the surface of the sidewalk, which ridge was 1/2 inch above the surface of the sidewalk at its highest point. The court held this to be deemed a minor defect, as a matter of law. See also Graves v. Roman, 113 Cal.App.2d 584, 248 P.2d 508 (1/8 inch variation); Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725 (joint crack break 1 1/2 inches); Whiting v. City of National City, supra, 9 Cal.2d 163, 69 P.2d 990 (rise of about 3/4 inch); Ness v. City of San Diego, 144 Cal.App.2d 668, 301 P.2d 410 (variation of 7/8 inch); Gentekos v. City & County of S. F., 163 Cal.App.2d 691, 329 P.2d 943; with similar holding. It was held in Beck v. City of Palo Alto, supra, 150 Cal.App.2d 39, 309 P.2d 125, that whether a defect in a sidewalk is trivial is reviewed by the appellate court without regard to the trial court's finding; it is a redetermination of the issue from the record. There, the defect was one to 1 7/8 inches, apparently caused by the roots of a pepper tree. We therefore must conclude that the condition of the sidewalk in the instant case was a minor, trivial defective condition, as a matter of law, and not a factual question for the trial court.

The only question then remaining is whether the sidewalk and driveway were constructed by Safeway for its sole purpose and use so as to come within the exception noted. It is true that a special permit was obtained for the purpose of placing a wider driveway across the public sidewalk than is ordinarily allowed in case of private driveways to a garage. It is true that this additional driveway was built by Safeway in accordance with the city ordinance and with permission of the City, without violation of any law, and was built mainly for the accommodation of Safeway's customers. However, it was a public sidewalk and remained such for travel of pedestrians not interested in Safeway's store.

Bearing on the question of defendant's duty to keep in repair the sidewalk and driveway involved, the question received attention in Winston v. Hansell, supra, 160 Cal.App.2d 570, 572, 325 P.2d 569. There, the pedestrian fell on the public sidewalk in front of the defendants' property. It was alleged in the complaint that:

‘* * * at all times herein mentioned there was and now is a sidewalk in front of said premises for the general public to walk upon, and that defendants * * * did make special use of said sidewalk in that said sidewalk was used as a driveway for automobiles * * * and as a direct and proximate result of said special use of said sidewalk, it was maintained and kept in a dangerous and defective state of disrepair in that said sidewalk was worn, broken, cracked and uneven * * * for a long period of time * * * but that defendants * * * neglected to repair the same * * *’

After analyzing the several cases there set forth, Mr. Justice Peters then said, 160 Cal.App.2d at page 576, 325 P.2d at page 573:

‘Thus, the general rule is that an abutting owner is not liable for injuries caused to members of the public by a defective sidewalk, at least in the absence of notice from the public authorities to repair. This general rule applies unless the defect is one created by the abutting owner or is the result of constructing or altering the sidewalk in such a fashion that is fills some special and peculiar need of the abutting owner. It necessarily follows that if the sidewalk is used only for normal sidewalk purposes and has no constructional defects created to fit the peculiar needs of the abutting property, no liability attaches because of defects in the sidewalk in the absence of some affirmative act of the abutting owner contributing to the defective condition, or in the absence of notice by the public authorities to repair. * * * use of a sidewalk as a driveway to the abutting property is not a peculiar or unusual use of such sidewalk. It is one of the ordinary and accustomed uses for which sidewalks are designed.’

In the instant case, it was stipulated at the trial that plaintiff did not intent to, nor did she present evidence as to negligent construction. It was agreed that the driveway was built according to the requirements of the city ordinance and under permit duly authorized by the City. There was no evidence that defendant Safeway caused any defective condition in the sidewalk. Furthermore, it appears that the defect was caused by the separation and sinking of the portion of the sidewalk not constructed by Safeway.

We therefore conclude that under the evidence here produced and the authorities cited, no liability rests upon the property owner under which the plaintiff could recover.

Judgment reversed.

GRIFFIN, Presiding Justice.

SHEPARD and COUGHLIN, JJ., concur.