DANGEROUS CONDITION

DANGEROUS CONDITION Summaries provided by Maria Nozzolino, Allen Glaessner Hazelwood & Werth, LLP

Nunez v. City of Redondo Beach, 2022 WL 2965453, Case No. B308741, filed July 27, 2022

Summary: A city’s policy to repair sidewalk uplifts of ½ inch or more does not create a dangerous condition. Instead, courts will consider the type and size of the sidewalk defect along with any aggravating factors. Discussion: On February 25, 2017, Plaintiff and Appellant Monica Nunez (“Nunez”) went for a group run on Redondo Beach. After the run, around 10:45 a.m., Nunez walked back to her car on a public sidewalk along Sought Catalina Avenue in Redondo Beach. As she was walking, her back foot hit a raised sidewalk slab causing her to trip, fall and sustain injuries to her left knee and right arm. The City of Redondo Beach (“City”) owns and is responsible for the sidewalk. Nunez sued the City alleging, inter alia, a cause of action for dangerous condition of public property under Gov. Code § 835. 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 evidence any “aggravating circumstances” existed to raise a triable issue of fact as to the trivial nature of the defect. The trial court granted the City’s motion and Nunez appealed. The Court of Appeal affirmed. A condition is dangerous for purposes of liability under Gov. Code § 835 if it creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Gov. Code § 830(a). This principle, known as the “trivial defect doctrine”, is not an affirmative defense but an aspect of duty that a plaintiff must prove to impose liability against the public entity. In the sidewalk-walkway context, the decision whether the defect is trivial is a two-step process: (1) evidence of the type and size of the defect; and (2) evidence of any additional, aggravating factors. Here, the evidence showed the height differential between the sidewalk slabs where Nunez tripped – at its highest point – was just under three quarters of an inch. The Court of Appeal, in analyzing the first step in the analysis, relied on case law holding that offsets ranging from three quarters of an inch to one- and one-half inch have generally been held trivial as a matter of law. Accordingly, the Court of Appeal found the preliminary analysis revealed a trivial defect. Next, the Court of Appeal considered whether there were “aggravating circumstances” to create a triable issue of fact. The City presented evidence demonstrating that there were no aggravating circumstances – it was a sunny, dry morning; the offset had no jagged edges; there was no debris in the area; and the sidewalk was free of cracks, holes, loose concrete or other defects. Additionally, the City presented evidence it had received no prior complaints about accidents involving the subject defect. Nunez argued the aggravating circumstances included: the color continuity of the sidewalk; Nunez’ lack of familiarity with the area; the fact that she tripped despite her athleticism; and shadows from nearby trees. Nunez argued each of the foregoing make the offset difficult to perceive. The Court of Appeal disagreed holding that to accept Nunez’ contention would render every trivial defect in the sidewalk otherwise a dangerous condition. Nunez further contended that a City policy which called for height differentials between a half-inch and one-and-a-half-inches be repaired did not create a triable issue of fact. The Court of Appeal reasoned the policy, in and of itself, did not create a dangerous condition where one otherwise did not exist and/or was minor, trivial or insignificant.