AUDREY DEMPSEY v. CITY OF PASADENA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this appeal from a summary judgment in favor of the City of Pasadena, we conclude that appellant's trip and fall was caused by a sidewalk defect that was trivial as a matter of law.   Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

In the early afternoon of October 9, 2007, appellant Audrey Dempsey left her hair appointment at a beauty shop located on Colorado Boulevard in Pasadena.   As she began walking on the sidewalk, appellant encountered another pedestrian walking in the opposite direction.   Appellant moved closer to the street to allow the pedestrian to pass her.   As she did that, she tripped and fell on a raised concrete slab of sidewalk.

Appellant sued the City of Pasadena (City) for a dangerous condition of public property.   The City moved for summary judgment on the ground that the sidewalk defect was trivial and the City was not on notice that it existed.

In support of the motion, the City submitted appellant's deposition, which established that the accident occurred on a nice day;  appellant was wearing tennis shoes;  she was walking fast and did not notice the defect before she fell, even though nothing was blocking her view;  she had no memory of falling and she had passed over the same sidewalk during previous visits to the beauty shop.

The City's public works superintendent, who took a photograph of the sidewalk defect, declared that the height difference between the sidewalk slabs measured just under one inch at its highest.   The displacement of the slabs was even and clearly visible to a person approaching it.   The City's claims coordinator declared that the City had received no complaints regarding the defect.   The city engineer explained that the City had surveyed its sidewalks in 2004 and had observed no defect at the location.   The City requested the court to take judicial notice that the accident occurred in a much traveled business area of Pasadena.

In opposition, appellant submitted the declaration of her expert Brad Avrit, a civil engineer experienced in pedestrian locomotion and safety investigations.   Based on his review of photographs, Avrit concluded that the sidewalk separation at its highest measured approximately one and one-sixteenth inches.   It was Avrit's opinion that, since the foot of a normal pedestrian has a ground clearance of one-fourth of an inch, height differentials greater than that are considered tripping hazards under a nationally recognized safety standard.   According to Avrit, due to the uniform color and texture of the concrete slabs, the defect was difficult to perceive unless a person was looking for it.

Based on his interpretation of the city engineer's deposition testimony and documents produced by the City, Avrit was of the opinion that the defect was caused over several years by the shallow roots of a ficus tree planted in the sidewalk, that the defect should have been reported by City employees traversing or working in the area, and that the City should have inspected the sidewalk more frequently because of the proximity of the ficus tree, whose roots are known to damage sidewalks.

Appellant asked the court to judicially notice that during daylight savings time, the sun creates the least amount of shadows at 11:00 a.m.¹

The trial court granted the City's motion for summary judgment because, even assuming the sidewalk defect measured one and one-sixteenth inches, absent aggravating circumstances it was trivial as a matter of law.   The court did not reach the issue of notice.   Appellant filed this timely appeal from the judgment.

DISCUSSION

I

On appeal, we review de novo an order granting summary judgment.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar ).)   A motion for summary judgment must be granted when there is no triable issue of material fact, so that the moving party is entitled to judgment as a matter of law.   Courts view the evidence and draw all reasonable inferences supported by it in the light most favorable to the nonmoving party.  (Code Civ. Proc., § 437c, subd. (c);  Aguilar, at p. 843.)

A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action.   (Code Civ. Proc., § 437c, subd. (p)(2);  Aguilar, supra, 25 Cal.4th at p. 853.)   If this showing is made, the burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or defense.  (Code Civ. Proc., § 437c, subd. (p)(2);  Aguilar, at pp. 850-851.)

II

Liability on the theory of a dangerous condition of public property is premised upon Government Code section 835.   That statute provides in relevant part that “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 that either the condition was created by a negligent act or omission attributable to the public entity or the public entity had actual or constructive notice of the condition.  “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․”  (Gov.Code, § 830.2;  see also Gov.Code, § 830, subd. (a).)  A public entity is charged with constructive notice of a dangerous condition “only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”  (Gov.Code, § 835.2, subd. (b).)

In determining whether a defect is trivial as a matter of law, the court first “reviews evidence regarding the type and size of the defect.   If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff's knowledge of the area.   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.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568 (Stathoulis ), citing Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 729 (Fielder ).)   The court also must consider whether the defect was conspicuous enough to place the public entity on notice of its dangerous character by reviewing “the seriousness of the defect, its visibility to pedestrians, the frequency with which the area is traveled and the likelihood a reasonable inspection would have revealed the defect in time to make necessary repairs.”  (Stathoulis, at p. 568.)

As recognized in Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 289-290 (Barone ), the trivial defect doctrine has been applied to negate either the element of notice or the dangerousness of the defect.   These applications derive from two early California Supreme Court cases.   In Nicholson v. City of Los Angeles (Nicholson ) (1936) 5 Cal.2d 361, 364, the court assumed that a sidewalk defect measuring one to one and one-half inches in elevation was a dangerous condition.   But the court held that, by itself, the existence of this defect did not provide constructive notice of the dangerous character of the condition.  (Id. at p. 366.)   In Whiting v. City of National City (1937) 9 Cal.2d 163, 166, where the difference in elevation was three-quarters of an inch, the court cited Nicholson for the proposition that “the continued existence of a minor defect is in itself insufficient to impose liability upon the city for injuries resulting therefrom.”   The court explained:  “It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition.   Minor defects are bound to exist.   A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel.   Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby.   What constitutes a minor defect is not always a mere question of fact.   If the rule were otherwise the city could be held liable upon a showing of a trivial defect.”  (Id. at p. 165.)

The Barone court acknowledged that the rule that “a defect is too trivial, as a matter of law, to constitute a dangerous condition” did not derive from the holding of either case.  (Barone, supra, 79 Cal.App.3d at p. 289.)   Nevertheless, “the rule itself is well established and has been consistently applied.”  (Ibid.) Indeed, Nicholson has been repeatedly cited as holding that a one and one-half inch elevation difference is trivial as a matter of law.  (See Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73;  Stathoulis, supra, 164 Cal.App.4th at p. 568;  Fielder, supra, 71 Cal.App.3d at p. 724, fn. 4, and cases cited.)

Respondent relies on cases citing Nicholson to argue that a sidewalk elevation of one and one-sixteenth inches is trivial as a matter of law.   It also cites other cases in which elevations at about the one-inch mark were held to be trivial.  (See, e.g., Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529 [one inch];  Dunn v. Wagner (1937) 22 Cal.App.2d 51 [one inch];  Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46 [variation from five-eighths of an inch to an inch and three-eighths];  see also Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39 [elevation possibly as high as one and seven-eighths inches].)

Appellant attempts to distinguish the holding of Nicholson on the ground that it resolved the issue of constructive notice rather than dangerousness of the condition.   This distinction is not dispositive in light of the acknowledgment in Barone that the Nicholson holding has been consistently applied to the dangerousness of a defect.  (Barone, supra, 79 Cal.App.3d at p. 289.)   Appellant relies on a statement in Fielder that as “the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.”  (Fielder, supra, 71 Cal.App.3d at p. 726.)   The Fielder court reviewed existing case law in an attempt to bring consistency to the trivial defect doctrine.   While it cited no cases for this particular proposition, cases reviewed in other parts of the opinion dealt with holes or depressions in sidewalks significantly larger than one inch.  (Id. at pp. 724, fn. 5, 727-729, 730;  see, e.g., Gentekos v. City & County of S.F. (1958) 163 Cal.App.2d 691, 695, superseded by statue on other grounds as stated in Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831 [a two-inch piece of broken sidewalk sticking out from a depression].)

Ultimately, the court in Fielder recognized that the size of a defect may not be dispositive by itself, and that the presence of aggravating factors is often what presents a triable issue of material fact.  (See Fielder, supra, 71 Cal.App.3d at pp. 729-731, citing Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463 [four prior trips and falls at a sidewalk elevation of one-half inch to approximately one inch];  Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, superseded by statue on other grounds as stated in Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 831 [plaintiff tripped over a sidewalk elevation of one-half to five-eighths of an inch during her first trip in this particular direction while she was walking slowly at night on a shadowy sidewalk];  Gentekos v. City & County of S.F., supra, 163 Cal.App.2d at p. 695 [the edges of a broken sidewalk were irregular and jagged, and others had previously stumbled over the break];  see also Stathoulis, supra, 164 Cal.App.4th at p. 568 [three closely situated irregularly shaped one-inch potholes in an area as to whose condition a general prior complaint had been lodged].)   The converse is also true:  the absence of aggravating factors may lead to the conclusion that a defect is trivial.  (See, e.g., Beck v. City of Palo Alto, supra, 150 Cal.App.2d 39, 44 [sidewalk elevation of up to one and seven-eighths inches in residential area was trivial defect where nothing hid the defect from view, and the plaintiff tripped in broad daylight with nothing to distract her].)

Appellant urges the court to adopt her expert's opinion that a defect over one inch in height poses a substantial hazard to pedestrian travel.   The expert's opinion does not determine whether the defect is trivial or not;  rather, the court must independently examine the circumstances of the fall.  (See Fielder, supra, 71 Cal.App.3d at p. 732 [“There was some expert testimony that the defect was dangerous, due to its depth, but this should not prevent us from finding in an appropriate situation that the defect was trivial as a matter of law.   For in this area there is no need for expert opinion.   It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous”];  see also Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928-929.)

Based on our review of the cases, we conclude that the sidewalk differential of, at most, one and one-sixteenth inches in this case does not by itself present a triable issue of material fact.   The size of a depression is not the sole factor for determining whether a condition is dangerous.  Fielder, supra, 71 Cal.App.3d at p. 734.   Rather, “the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.   As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole.   The court should also look at other factors such as whether the accident occurred at night in an unlighted area.   Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.”  (Ibid.)

The record in this case does not establish the presence of any aggravating factor.   The accident occurred on a nice day, nothing was blocking appellant's view, and she had passed over the same sidewalk during prior visits to the beauty shop.   The displacement of the slabs was even, with no jagged or irregular edges.   The City had received no complaints about the defect, and its city-wide survey of sidewalks in 2004-2005 had not disclosed a defect at this location.

Appellant argues that the City did not establish facts justifying a judgment in its favor, citing Barone, supra, 79 Cal.App.3d at pages 291-292, where the court held that the three photocopied photographs submitted by the defendant City were of poor quality but nevertheless revealed “an irregular and jagged break,” and discovery on the question of prior complaints was not complete.   That is not the case here.   The City has submitted competent evidence that it has no record of complaints about the location, and appellant does not dispute that the color photographs in the record indicate a clean displacement with no irregularity.

Relying on her expert's declaration, appellant argues that the displacement was not noticeable because of the identical color or texture of the slabs of concrete.   The problem with this argument is that it would hold true in any case of a displacement of sidewalk slabs since virtually all such slabs are of the same color and texture.   Yet no court has considered this an aggravating factor.   Rather, courts have looked at “lighting and visibility conditions at the time of the accident, [or] the existence of debris or obstructions.”   (Stathoulis, supra, 164 Cal.App.4th at p. 567.)   None of these is a factor in this case.

Even assuming that appellant was not negligent and that she had no knowledge of the sidewalk defect, in the absence of aggravating factors, the trial court properly found that based on the undisputed facts the defect was trivial as a matter of law.   Because appellant cannot establish that the sidewalk defect presented a dangerous condition, we need not decide whether the City had constructive notice of the “condition and its dangerous character” under Government Code section 835.2, subdivision (b).

DISPOSITION

The judgment is affirmed.   Respondent to have its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Since the fall occurred in the early afternoon, this request for judicial notice was apparently meant to create an inference as to the presence of shadows even though there was no evidence that a shadow was cast over the defect.   The trial court did not specifically rule on the parties' requests for judicial notice, but it fully considered the evidence..  FN1. Since the fall occurred in the early afternoon, this request for judicial notice was apparently meant to create an inference as to the presence of shadows even though there was no evidence that a shadow was cast over the defect.   The trial court did not specifically rule on the parties' requests for judicial notice, but it fully considered the evidence.

MANELLA, J. SUZUKAWA, J.