The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)
ARGUMENT
The Sidewalk Differential Should Be Classified As A Trivial Defect As A Matter Of Law.
It is well established that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on property. Courts have referred to this simple principle as the trivial defect defense. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927 (2004); citing: Whiting v. City of National City, 9 Cal. 2d 163 (1937).
In Ursino v. Big Boy Restaurants, 192 Cal. App. 3d 394, 397 (1987), the court stated that the trivial defect defense could be asserted by both governmental and nongovernmental defendants alike because it is impossible to maintain heavily traveled surfaces in a perfect condition … minor defects … are bound to occur in spite of the exercise of reasonable care by the party having the duty of maintaining the area involved. (Citing: Graves v. Roman, 113 Cal. App. 2d 584, 586-587 (1952)).
The trivial defect defense is not an affirmative defense but instead is an aspect of duty that a plaintiff must overcome. Caloroso, 122 Cal. App. 4th 922, 927 (2004). The most important question is whether the plaintiff has shown there is a triable issue as to whether there was a dangerous condition in the walkway that the defendant had a duty to repair. Id.
The Differential is de Minimus in the Case at Bar Because of its Intrinsic Nature and the Absence of Aggravating Factors.
In determining dangerousness, courts look not just to the height or depth of the defect but also to any surrounding circumstances which, if present, can turn a seemingly innocuous and trivial defect into a substantial defect whose presence poses a risk to pedestrians. These aggravating factors include the physical characteristics of the defect (i.e. size, jagged edges, broken pieces, exposed rebar), the setting (lighting weather, other factors affecting visibility), and history (plaintiff’s familiarity with the area, any previous injuries attributable to the defect). Lechler v. City and County of San Francisco, 65 Cal. App. 4th 523, 528 (1998). Here, the intrinsic nature of the defect did not have any characteristics which made the crack more hazardous. No broken pieces of cement or exposed rebar were protruding from the sidewalk. The differential was not sharp or especially jagged. (Supported by the picture of the defect taken by plaintiff’s husband.) The defect measured 1/2 -inch high. Although courts have purportedly rejected a strict tape measure test which classifies a defect as trivial or substantial based solely on the height or depth of the defect, courts have consistently held defects with a height ranging up to one and a half inches are trivial, absent the present of aggravating factors. Caloroso, 122 Cal. App. 4th 922, 927.
Here, no other aggravating factors external to the physical characteristics of the differential itself were present at the time of Mrs. Brown’s accident. Mrs. Brown stated that it was a sunny day; the sidewalk was not shrouded in darkness from night or shadow. The sidewalk was not slippery or wet. Mrs. Brown testified she was able to see clearly all around her. (See Part 5 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.