Trivial Defect Law in California

A property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [sidewalk crack less than one-half inch in depth].)

This principle is sometimes referred to as the "trivial defect defense," although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. (Ibid.)

Persons who maintain walkways--whether public or private--are not required to maintain them in absolutely perfect condition. (Ibid.)

"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 [raised edge of three-fourths inch trivial as a matter of law]).

Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents. (Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, 151 [18 Cal. Rptr. 484] (Johnson), superseded on other grounds by statute as stated in Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831 [15 Cal. Rptr. 2d 679, 843 P.2d 624].)

See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4, 139 Cal.Rptr. 876 [citing decisions finding trivial defects ranging from one and one-half inches [1.5” or less].)

“[4] (Whiting v. City of National City, supra, [adjoining sidewalk panels differing in elevation three-fourths inch at the highest point]; Nicholson v. City of Los Angeles (1936) 5 C.2d 361 [54 P.2d 725] [one and one-half inches difference in elevation]; Sischo v. City of Los Banos, supra [grade in sidewalk of fifty-eight hundredths inch per foot]; Balmer v. City of Beverly Hills (1937) 22 Cal. App.2d 529 [71 P.2d 854] [one inch difference in elevation of sidewalk panels]; Dunn v. Wagner (1937) 22 Cal. App.2d 51, 54 [70 P.2d 498] [one inch rise in sidewalk]; Meyer v. City of San Rafael (1937) 22 Cal. App.2d 46, 50 [70 P.2d 533] [adjoining sidewalk panels varying from five-eights inch to one-thirty-eighth inches in height].)”

See also recent unpublished case of Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383.

Whether a condition is dangerous is almost always considered a question of fact that may be resolved as a question of law only “if reasonable minds can come to but one conclusion.” Davis v. City of Pasadena (1996) 42 Cal.App.4^th 701, 704. In Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, the Court stated that “. . . if reasonable minds could differ as to whether the condition was dangerous or defective, then such defect could not be considered trivial as a matter of law.” Id. at Pg. 152.

The Court in Fielder observed, “[i]t is to be noted that when 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.” Id. at Pg. 726.

“California does not classify defects as trivial or substantial according to a tape measure test--the mere depth or height of the defect in comparison to the rest of the sidewalk. Instead, courts look to the totality of the circumstances, which include[:]

[1] the physical characteristics of the defect (i.e., size, jagged edges, broken pieces, exposed rebar),

[2] the setting (lighting, weather, other factors affecting visibility), and

[3] history (plaintiff's familiarity with the area, any previous injuries attributable to the defect).

(E.g., Dolquist v. City of Bellflower (1987) 196 Cal. App. 3d 261, 267-268…; Ursino v. Big Boy Restaurants (1987) 192 Cal. App. 3d 394, 396, …, Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719, 731-732…)”

Although the size of a crack or pothole is a pivotal factor in the determination, “a tape measure alone cannot be used to determine whether the defect was trivial.” (Caloroso, supra, 122 Cal.App.4th at p. 927.)

“Instead, the court should determine whether there existed any circumstances surrounding the accident rendered the defect more dangerous than its mere abstract depth would indicate.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 [139 Cal. Rptr. 876] (Fielder); see also Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 268 [241 Cal. Rptr. 706] (Dolquist) [same].)

In Aitkenhead v. City & County of S. F. (1957) 150 Cal.App.2d 49 [Was a Plaintiff whose shoe was caught in the space between a sidewalk and the curb a trivial defect?], the Appellate Court stated:

"Obviously, no fixed measurement in inches of height, depth, or width of an obstruction or depression can be adopted or established as a standard because a determination of whether a condition is trivial or not depends upon all of the circumstances surrounding the existence of the conditions in the particular case. Therefore, it is incumbent ... to … review the evidence …and determine whether in the light of all of the surrounding circumstances the defect was minor or trivial as a matter of law." Ibid at Page 52.

In Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, the Appellate Court was again asked to determine what size of offset in a sidewalk was a trivial defect. The Court said:

"The size of the defect is only one circumstances to be considered, as no court has fixed an arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous. All of the circumstances surrounding the condition must be considered in the light of the facts of the particular case." Ibid at Page 43.

Further, California Building Code requires beveled slopes of no greater than 50% for changes in elevation from 1/4" to 1/2". If the change in elevation is greater than 1/2" then have to use a curb ramp.

Thus, is sidewalk trip and fall cases in California against private property owners (premises negligence) and municipalities (dangerous condition of public property), "trivial" defect as a matter of law typically has been held to be 1 to 1.5” inches or less, but this can vary according to the other surrounding circumstances.

See Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [court should consider whether walkway had broken pieces, jagged edges, debris or grease or water concealing the defect, and the lighting of the area, conditions obstructing plaintiff’s view, among other things].

"…where… aggravating circumstances or facts were present…where 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 v. City of Glendale, 71 Cal.App.3d 719, 726.)

The court should also consider the weather at the time of the accident, a plaintiff's knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury. (Ursino, supra, 192 Cal.App.3d at p. 397; Barone v. City of San JoseFielder, supra, 71 Cal.App.3d at p. 734; Johnson, supra, 199 Cal.App.2d at p. 152.) (1978) 79 Cal.App.3d 284, 290–291;

Further, an otherwise vertical trivial rise in the sidewalk may be considered dangerous if a horizontal gap is likely to trap the shoes of pedestrians whose feet strike the rise (Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 52).

If the defect that causes injury is merely a part of a broader, cumulative dangerous condition caused by the defendant, the trivial-defect doctrine does not apply. See Clark v. City of Berkeley (1956) 143 Cal.App.2d 11, 16), which states:

“Where an entire sidewalk area is in a broken, dilapidated and fragmented condition, so that pedestrians using it must undergo the hazards of many inequalities, any one of which might cause a fall, the reason behind the rule should cease to operate. An isolated minor defect may be so trivial, that though it creates a peril to pedestrians using it, the city as a matter of public policy may not be held liable to repair it. An entire sidewalk crumbling and falling apart is an entirely different matter and the city should not be entitled to ignore the cumulative perils presented by its generally fragmented condition.”

See Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812 [city inspector's testimony that sidewalk defect as depicted in photographs was hazardous precludes finding that defect trivial as a matter of law].)

“[The inspector] admitted that if he had seen a condition of the sidewalk such as that testified to and pictured in the photographs, he would have considered it hazardous and as requiring a correction of the defect or condition. In view of that evidence, 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 for injuries resulting therefrom.” (Ibid.)

Palmer v. City of Long Beach (1948). 33 Cal.2d 134, 144-145 [“…if defendant… admitted its own negligence in failing to repair the hole…its liability under the Public Liability Act would necessarily follow.”]

Photographs: A defect is not trivial as a matter of law if reasonable minds can differ as whether or not photographs correctly depict the alleged defect and its surrounding circumstances. (Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 26.) Further, if alleged defect’s size is factually contested, the probative value of photographs ought to be submitted to the jury. (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 137.)

Quotes below are from Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559:

“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.” (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 72–73 [256 P.2d 977] (Barrett), citing Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363 [54 P.2d 725] (Nicholson).)

“The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. (Ursino, supra, 192 Cal.App.3d at p. 399.)”

“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, supra, 122 Cal.App.4th at p. 929; see Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704 [50 Cal. Rptr. 2d 8].)

“The rule which permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. … [A] landowner is not an insurer of the safety of its users.” (Ursino, supra, 192 Cal.App.3d at p. 399.)

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 and grant judgment for the landowner.” (Fielder, supra, 71 Cal.App.3d at p. 729.)

“If…the landowner is a public entity, the court must also determine whether the defect was conspicuous enough to place the entity on notice. (§ 835.) To that end, it must consider the seriousness of the defect, its visibility to pedestrians, the frequency with which the area is travelled and the likelihood a reasonable inspection would have revealed the defect in time to make necessary repairs.” (Dolquist, supra, 196 Cal.App.3d at p. 268; Thomas et al., Premises Liability in California (2005) § 3:47, p. 223.)”

TRIVIAL DEFECTS LAW IN CALIFORNIA

1. TRIVIAL DEFECT RULE:

A vertical change in elevation of a walkway one inch (1”) or less (or possibly 1.5 inches or less) alone is generally trivial defect as a matter of law unless the totality of circumstances, i.e. other aggravating surrounding factors, indicates otherwise.

A trivial defect is one that does not pose a substantial risk of injury to a person properly using the area for the purpose intended.