The opinion
Filed 5/3/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARK STACK,
F082994
Plaintiff and Respondent,
(Super. Ct. No. 19C-0404)
v.
CITY OF LEMOORE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Suzanne M. Nicholson; Law Offices of Gregory L. Myers and Gregory L. Myers
for Defendant and Appellant.
Freedman Law and Jesse R. Fretwell for Plaintiff and Respondent.
-ooOoo-
The City of Lemoore (City) appeals following a jury verdict in favor of plaintiff
Mark Stack, who was injured when he tripped over an uneven portion of a City sidewalk.
The City asks us to declare the offending portion of sidewalk not a “dangerous condition”
under the Government Claims Act as a matter of law. We decline to do so and therefore
affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On March 11, 2019, while jogging his usual route around his neighborhood,
plaintiff tripped over a raised slab of public sidewalk on the west side of Fox Street in the
City. The photographs of the sidewalk admitted at trial show a panel of concrete
sidewalk, the edge of which is elevated about one and three-quarter inches above its
neighboring panel (hereafter, the first defect).1 As shown in the photographs and
described by plaintiff and his expert witness, the lifted panel slopes slightly downward
away from the first defect, as viewed from plaintiff’s perspective as he jogged south; and
it runs into the next sidewalk panel, which in turn slopes upward and creates a second
elevated ridge where it meets with the following downward-sloping, raised panel
(hereafter, the second defect). Each defect aligns with a trunk of one of the bordering
trees, whose roots have grown beneath the sidewalk, pushing it up in places. A layer of
pine needles appears all along the base of the first defect, except at its outermost edges.
The sidewalk photographs admitted at trial were taken by plaintiff the day after his fall,
and he testified they were good depictions of the conditions in the area both the previous
day and over the prior two years—including the amount of pine needles.
Plaintiff was familiar with both defects from having jogged over this stretch of
sidewalk some 300 times in the previous two years.2 During this particular jog, he saw
the first defect as he approached; but as he was striding over it, he was focused up ahead
on the second defect, and he caught his toe on the lip of the first defect and stumbled.
Unable to catch himself, plaintiff fell and broke his left wrist. He went to the emergency
room and later had two surgeries to repair the wrist. Plaintiff had never tripped or fallen
in that area before, and he testified that there was nothing different about the way he was
jogging that day.
1 We attach certain of these photographs to this opinion. (See appendix, post, pp. 24–26.)
2 This estimate was based on plaintiff’s testimony that he jogged five to seven times a
week (extrapolated to 52 weeks per year over two years), and half the time he jogged south on
the west side of Fox Street.
2.
Plaintiff’s human factors expert, Dr. Bong Walsh, later inspected the area of the
fall with plaintiff and reviewed plaintiff’s photos and description of the incident.
According to Dr. Walsh, the second defect lay approximately 20 feet beyond the first
defect, in the direction plaintiff was jogging, with a “weird sort of downslope and
upslope” between the two. Dr. Walsh explained that the human brain starts planning the
body’s motor movements to navigate an upcoming obstacle a couple of seconds before
encountering it; and that based on plaintiff’s average rate of jogging, plaintiff would have
been just two seconds away from the second defect while he was crossing the first.
Therefore, Dr. Walsh opined that the existence of the second defect this distance from the
first defect “enhance[d] the fall risk” for joggers, whose brains would be focused on the
second defect while they were clearing the first.3 Dr. Walsh acknowledged that the first
defect was “clearly visible” from 25 feet away, and that plaintiff presumably would have
been focused on it from about that distance while he was two to two and a half seconds
away.
Dr. Walsh opined that another factor increasing the risk of a fall was the layer of
pine needles at the base of the first defect. According to Dr. Walsh, the pine needles
made it difficult to tell just how high the first defect was, both because they obscured
portions of the face of the elevation and because they “create[d] a color issue,” making it
more difficult to judge “the contrast of where the defect starts and ends.” Although the
proximity of the two defects was, in his opinion, the larger issue, the pine needles were
still a contributing factor as well.
Plaintiff sued the City for general negligence and for maintaining a dangerous
condition on public property in violation of Government Code section 835.4 The case
3 Dr. Walsh clarified that the second defect would not have created additional risk for those
walking, as opposed to jogging or running, because a walker would have closer to five seconds
in between the defects.
4 All further statutory references are to the Government Code unless otherwise stated.
3.
went straight to jury trial. The trial court ultimately granted the City a judgment of
nonsuit (Code Civ. Proc., § 581c) on the negligence cause of action, recognizing the rule
that “[l]iability of public entities is set by statute, not common law.” (Bonanno v. Central
Contra Costa Transit Authority (2003) 30 Cal.4th 139, 156 (Bonanno).) The trial court
denied the City’s motions for nonsuit and for a directed verdict on the section 835 cause
of action, rejecting the City’s arguments grounded in lack of notice and certain
immunities not at issue in this appeal.
On March 22, 2021, the jury returned a special verdict in plaintiff’s favor,
expressly finding that the sidewalk was in a dangerous condition at the time of the
incident. The jury awarded plaintiff nearly $90,000 in damages, attributing no
comparative fault to him. The court entered judgment for plaintiff and against the City,
from which the City now appeals.
DISCUSSION
I. Governing Law
Section 835, part of the Government Claims Act (§ 810 et seq.), “sets out the
exclusive conditions under which a public entity is liable for injuries caused by a
dangerous condition of public property.” (Brown v. Poway Unified School Dist. (1993)
4 Cal.4th 820, 829.) To recover under section 835, a plaintiff must prove that a
“dangerous condition proximately caused his or her injury; that the condition created a
reasonably foreseeable risk of the type of injury that was actually incurred; and that the
public entity either created the dangerous condition through a negligent or wrongful act
or omission of its employee, or had actual or constructive notice of the dangerous
condition sufficiently in advance of the accident as to have had time to remedy it.”
(Bonanno, supra, 30 Cal.4th at p. 155; see § 835.) “An initial and essential element … is
proof a dangerous condition existed.” (Stathoulis v. City of Montebello (2008)
164 Cal.App.4th 559, 566 (Stathoulis).) That is the only element at issue in this appeal.
4.
As used in the Government Claims Act, “ ‘[d]angerous condition’ means a
condition of property that creates a substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent property is used with due care
in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).)
The Government Claims Act also states, conversely, that “a condition is not a dangerous
condition … 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
when such property or adjacent property was used with due care in a manner in which it
was reasonably foreseeable that it would be used.”5 (§ 830.2.)
These statutory parameters are meant to “ ‘guarantee that cities do not become
insurers against the injuries arising from trivial defects.’ ” (Thimon v. City of Newark
(2020) 44 Cal.App.5th 745, 755.) Together with the surrounding case law, they form
what is known as the “trivial defect doctrine,” shielding public entities from liability for
defects that a court deems trivial as a matter of law. (Huckey v. City of Temecula (2019)
37 Cal.App.5th 1092, 1104 (Huckey).) This doctrine reflects an acknowledgement 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.”6 (Whiting v.
National City (1937) 9 Cal.2d 163, 165 (Whiting).)
5 The Law Revision Commission described section 830.2 as “[t]echnically … unnecessary,
for it merely declares the rule that would be applied in any event when a court rules upon the
sufficiency of the evidence.” (Cal. Law Revision Com. com., 32 pt. 2 West’s Ann. Gov. Code
(2012 ed.) foll. § 830.2, p. 28.) However, its purpose is “to emphasize that the courts are
required to determine that there is evidence from which a reasonable person could conclude that
a substantial, as opposed to a possible, risk is involved before they may permit the jury to find
that a condition is dangerous.” (Ibid.)
6 “ ‘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
5.
“The existence of a dangerous condition is ordinarily a question of fact—resolved
here by the jury’s express finding that the [sidewalk] was a dangerous condition of
[public] property—but it can be decided as a matter of law if reasonable minds can come
to only one conclusion.” (Bonanno, supra, 30 Cal.4th at p. 148.) If the “court determines
that sufficient evidence has been presented so that reasonable minds may differ as to
whether the defect is dangerous, the court may not rule that the defect is not dangerous as
a matter of law.” (Fielder, supra, 71 Cal.App.3d at p. 734.)
II. Analysis
The City’s sole argument in this appeal is that the sidewalk condition where
plaintiff tripped was too trivial, as a matter of law, to constitute a dangerous condition
under section 835. We disagree and hold the question was properly left to the jury for a
factual determination of the condition’s dangerousness.
There is “no hard-and-fast rule” for what constitutes a dangerous condition, as this
must be decided on the unique facts of each case. (Fackrell v. San Diego (1945)
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.’ ” (Huckey, supra,
37 Cal.App.5th at p. 1105, fn. 3.) It gives us some pause that in the trial court, the City never
attempted to use the trivial defect doctrine for this “check valve” purpose, instead waiting until
this appeal to contest the sidewalk’s dangerousness as a matter of law—after the issue had
already gone to the jury for a factual determination. As a best practice, defendants who believe a
given defect is not a dangerous condition should raise that legal challenge in a motion for
summary judgment in the trial court. Allowing municipalities to wait until after a jury has found
against them on the facts to raise their arguments on the law for the first time on appeal runs
contrary to the policy of eliminating from the court system unwarranted litigation. However,
section 830.2 expressly permits either “the trial or appellate court” to determine the triviality of
the risk involved, and a handful of cases have reversed posttrial plaintiffs’ judgments based on
triviality as a matter of law without discussing whether the defendant raised the issue below.
(See, e.g., Whiting, supra, 9 Cal.2d 163 [reversing the plaintiff’s judgment after bench trial];
Fielder v. City of Glendale (1977) 71 Cal.App.3d 719 (Fielder) [reversing the plaintiff’s
judgment after jury trial].) Plaintiff also does not make any argument based on the City’s
omission. Accordingly, we do not decide this case based on the City’s failure to raise in the trial
court the trivial defect doctrine—which we note describes part of plaintiff’s prima facie burden,
rather than an affirmative defense. (See Huckey, at p. 1104 [explaining that the doctrine is not an
affirmative defense but “an aspect of duty that a plaintiff must plead and prove”].)
6.
26 Cal.2d 196, 206.) California Courts of Appeal typically follow a two-step analysis for
determining whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law.
“First, the court 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, supra, 164 Cal.App.4th at pp. 567–568; see Nunez v. City of Redondo Beach
(2022) 81 Cal.App.5th 749, 758 (Nunez) [adopting two-step framework]; Huckey, supra,
37 Cal.App.5th at p. 1105 [same].)
Although we agree with the premise that the size of the defect is the primary
determinant of triviality, as discussed below, we modify the prevailing two-step
framework into a holistic, multi-factor analysis.
A. Size of the Defect
We begin with the “ ‘most important’ ” factor: the defect’s size. (Stathoulis,
supra, 164 Cal.App.4th at p. 568.) There was no testimony or stipulation here as to the
height of the first defect—the raised sidewalk slab that tripped plaintiff as he jogged.
However, one of the photos of the first defect, exhibit 4, shows a tape measure set
vertically against the raised slab where it meets the lower neighboring slab. The photo is
taken from a higher angle that makes it difficult to judge the exact elevation
measurement, but it appears to show, at minimum, a height differential of one and three-
quarter inches at slightly left of center of the ridge. As noted by the trial court in denying
the City’s motion for nonsuit, the photographs in exhibits 1 and 1A support an inference
that the raised sidewalk slab of the first defect angles slightly upward (facing south,
looking from left to right), meaning a fact finder could reasonably conclude that the
7.
height differential was even greater at the right end of the first defect.7 Viewing the
photographic evidence most favorably to plaintiff, as section 830.2 requires, we treat the
first defect as measuring one and three-quarter inches at its lowest point for purposes of
this appeal. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11,
15, 24 [the reviewing court must examine the photographs in evidence for itself and make
its own determinations]; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705
[noting § 830.2’s requirement that the reviewing court independently evaluate the
circumstances].)
This size defect hovers at the very upper limit of sidewalk height differentials any
court has deemed trivial as a matter of law. None of the cases cited in the briefs involved
a differential of one and three-quarter inches or greater, and our independent search
reveals just one case in which an equal or greater sidewalk height differential was
deemed trivial. (See Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43–44 (Beck)
[holding sidewalk height differential of one and seven-eighths inches at its maximum was
trivial as a matter of law, and reversing bench trial judgment for plaintiff where no other
aggravating circumstances were present].) In attempting to downplay the size of the first
defect, the City quotes one court’s generalization that “[s]idewalk elevations ranging
from three-quarters of an inch to one and one-half inches have generally been held trivial
as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107; see Stathoulis, supra,
164 Cal.App.4th at p. 568 [“Several decisions have found height differentials of up to one
and one-half inches trivial as a matter of law.”]) This dictum in Huckey and Stathoulis
exaggerates the generally accepted size range of defects deemed trivial. The more
7 Although the City primarily argued lack of notice as the basis of its oral motion for
nonsuit, the City also briefly argued at the outset that, as a factual matter, the sidewalk was not a
dangerous condition for purposes of sections 830 and 830.2 because plaintiff had successfully
navigated it many times in the past. In denying the motion as to the section 835 claim, the trial
court found the condition was dangerous and not trivial based on the “combination of the lip [of
the first defect], the angle, the pine needles, and the angle downward … as you’re moving,
traveling [south] and then you have the next patch of concrete [in the second defect].”
8.
accurate encapsulation is 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,” i.e., that it is minor or trivial.8 (Fielder, supra, 71 Cal.App.3d at p. 726, italics
added.)
8 We are aware of only one case to squarely hold a sidewalk defect of one and one-half
inches or greater not to be a dangerous condition as a matter of law. (See Beck, supra,
150 Cal.App.2d at pp. 43–44 [maximum one- and seven-eighths-inch-deep sidewalk defect].)
Nicholson v. Los Angeles (1936) 5 Cal.2d 361 is the case most commonly cited in support of the
purported one- and one-half-inch threshold; but while that case indeed featured a maximum one-
and one-half-inch-deep sidewalk defect, the Supreme Court did not decide whether or not the
defect was dangerous as a matter of law. Rather, the court assumed it was dangerous but held
there was insufficient evidence that the condition had achieved the degree of “conspicuousness
or notoriety” needed to impute constructive notice to the city. (Id. at pp. 364–365, 368; see Ness
v. City of San Diego (1956) 144 Cal.App.2d 668, 671 [observing that in Nicholson “a dangerous
condition … was assumed for the purpose of deciding that there was no notice”].)
One Court of Appeal case on which Huckey and Stathoulis indirectly rely also involved a
defect approaching the one- and one-half-inch mark; but it merely held that under Nicholson, the
evidence did not show the city had notice—without deciding whether the maximum one- and
three-eighths-inch defect was trivial as a matter of law. (See Meyer v. City of San Rafael (1937)
22 Cal.App.2d 46, 47, 50.) None of the other cases relied upon for the one- and one-half-inch
threshold suggested in Huckey and Stathoulis involve height differentials of more than one inch.
(See Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 [holding a maximum one-half-inch
ridge of asphalt constituted a minor defect]; Whiting, supra, 9 Cal.2d at pp. 165–166 [identifying
a maximum three-quarter-inch sidewalk elevation as a minor defect]; Caloroso v. Hathaway
(2004) 122 Cal.App.4th 922, 929 (Caloroso) [holding trivial a sidewalk elevation of less than
one-half inch]; Fielder, supra, 71 Cal.App.3d at pp. 721, 732 [holding trivial a maximum three-
quarter-inch sidewalk elevation]; Sischo v. City of Los Banos (1940) 37 Cal.App.2d 717, 718
[identifying a “practically imperceptible” sidewalk slope of 58 one-hundredths of an inch per
foot as a minor defect]; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 531–532
[holding a maximum one-inch sidewalk elevation a minor defect under Whiting]; Dunn v.
Wagner (1937) 22 Cal.App.2d 51, 53–54 [holding trivial a one-inch sidewalk elevation].)
In fact, the cases that have addressed whether defects around one and one-half inches
high are dangerous conditions have declined to hold such defects trivial as a matter of law,
though not based on height alone. (See Johnson v. City of San Leandro (1960) 179 Cal.App.2d
794, 800 [height differential of one and three-quarter inches located in a crosswalk]; Sheldon v.
City of Los Angeles (1942) 55 Cal.App.2d 690, 692–693 [maximum one- and one-half-inch
sidewalk elevation].
Huckey itself held a sidewalk defect reaching one and seven thirty-seconds inches (almost
one and one-quarter inches) trivial as a matter of law (Huckey, supra, 37 Cal.App.5th at
pp. 1095–1096, 1102–1103), but all of the other published opinions since the cases Huckey cites
9.
That said, there is no firmly fixed “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.” (Beck, supra, 150 Cal.App.2d at p. 43.) This is because
a “court should not rely solely upon the size of the defect … although the defect’s size
‘may be one of the most relevant factors’ to the court’s decision.” (Huckey, supra,
37 Cal.App.5th at p. 1105, quoting Fielder, supra, 71 Cal.App.3d at p. 734.) “Instead,
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.” (Fielder, at p. 734.)
In Fielder, as in most cases discouraging judging a defect purely by tape measure,
the court was dealing with a defect under one inch high; and the rule as stated suggests a
one-directional operation whereby an assertion of triviality as a matter of law cannot be
accepted based on height alone but can be rejected based on height alone if (and only if)
the height is great enough. (Fielder, supra, 71 Cal.App.3d at pp. 722, 724, 732 [holding
trivial a three-quarter-inch sidewalk nonalignment]; see id. at p. 734 [“While size may be
one of the most relevant factors to the decision, it is not always the sole criteria.” (italics
added)]; see, e.g., Stathoulis, supra, 164 Cal.App.4th at pp. 566–568 [in holding trivial a
set of one-inch-deep gouge marks, stating a court should consider “ ‘any circumstances
surrounding the accident which might have rendered the defect more dangerous than its
mere abstract depth would indicate’ ” (italics added)]; Caloroso, supra, 122 Cal.App.4th
at pp. 927, 929 [in holding trivial a sidewalk crack less than one-half of an inch deep,
stating a court should consider “all of the circumstances surrounding the accident that
have only held trivial defects of less than one inch. (See Nunez, supra, 81 Cal.App.5th at
pp. 759–760 [holding trivial a maximum three-quarter-inch sidewalk height differential]; Cadam
v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 385–386 [holding trivial a
maximum seven-eighths-inch walkway height differential]; Ursino v. Big Boy Restaurants
(1987) 192 Cal.App.3d 394, 396–398 [holding trivial a maximum three-quarter-inch walkway
height differential]; Ness v. City of San Diego, supra, 144 Cal.App.2d at p. 673 [holding trivial a
seven-eighths-inch sidewalk elevation].)
10.
might make the defect more dangerous than its size alone would suggest” (italics
added)]; see also Nunez, supra, 81 Cal.App.5th at p. 757 [quoting Caloroso’s rule in
holding trivial a sidewalk offset of less than three-quarters of an inch].)
The commonly recited two-step framework set forth above also suggests that
defect size alone can preclude a legal conclusion of triviality when the size is great
enough. (See Stathoulis, supra, 164 Cal.App.4th at pp. 567–568 [“First, the court
reviews evidence regarding type and size of the defect. If that preliminary analysis
reveals a trivial defect, the court considers evidence of any additional factors .…” (italics
added)].) However, these formulations do not comport with section 830.2’s express
requirement to assess the triviality of “the risk created by the condition … in view of the
surrounding circumstances,” regardless of size. (§ 830.2, italics added.)
In light of section 830.2’s mandate to consider “the surrounding circumstances” in
every case, we think it better to adopt a holistic multi-factor framework for assessing
triviality—rather than the “two-step” framework espoused by other Courts of Appeal. In
our holistic multi-factor framework, the size of the defect is but one of the many
circumstances to be considered; however, size remains the “ ‘most important’ ” of the
dangerous condition factors. (Stathoulis, supra, 164 Cal.App.4th at p. 568, quoting
Thomas, et al., Premises Liability in California (2005) § 3:46, p. 222; see Fielder, supra,
71 Cal.App.3d at p. 734 [a defect’s size “may be one of the most relevant factors” to the
court’s decision].)
In this case, the minimum one- and three-quarter-inch height differential of the
first defect weighs heavily against finding the sidewalk condition trivial as a matter of
law. The height is nearly double the one-inch threshold where courts grow reluctant to
take the issue from the jury. (See Fielder, supra, 71 Cal.App.3d at p. 726.) Thus,
although we proceed to consider additional factors regarding the condition, the height of
11.
this defect will require a strong showing of other circumstances that made it not
dangerous despite its height.9
B. Additional Factors
Beyond size, additional factors courts typically consider in assessing a sidewalk
condition’s triviality as a matter of law are: the nature and quality of the defect
(including whether it has jagged breaks or cracks); whether anything was obstructing or
concealing the defect (for instance, an object, debris, or other substance); the lighting and
weather conditions at the time of the incident; whether the defect has caused other
accidents; and plaintiff’s familiarity with the area.10 (See Nunez, supra, 81 Cal.App.5th
at pp. 757–758; Huckey, supra, 37 Cal.App.5th at p. 1105; Caloroso, supra,
122 Cal.App.4th at p. 927; Fielder, supra, 71 Cal.App.3d at p. 734.) The City argues the
present sidewalk condition must be deemed trivial as a matter of law because of its open
and obvious nature, plaintiff’s admitted familiarity with the condition, and the absence of
prior accidents there.
1. The Nature and Quality of the Condition
At the outset, we note the sidewalk condition at issue can fairly be viewed as
consisting of more than one defect. Although only the first defect physically tripped
plaintiff, the evidence presented at trial supports a broader view of the sidewalk condition
that plaintiff encountered. As described above, two sets of abutting sidewalk panels
formed two elevated ridges (the first defect & the second defect) separated by about
9 We are essentially employing the inverse of Fielder’s rule that “when two slabs of a
sidewalk are nonaligned horizontally, by a slight depression, such a defect may be found to be
trivial as a matter of law provided that there are no aggravating circumstances attending the
defect.” (Fielder, supra, 71 Cal.App.3d at p. 729, italics added.) Flipped to fit our scenario, that
rule becomes as follows: When two slabs of a sidewalk are nonaligned horizontally, by a
significant depression, such a defect may not be found to be trivial as a matter of law unless there
are no aggravating circumstances attending the defect.
10 As explained below, we do not view a plaintiff’s prior familiarity with the area as a
proper factor in the triviality determination.
12.
20 feet, with a slight valley formed by the downward- and upward-sloping panels in
between. As viewed in exhibit 6—a photograph taken from a relatively low angle
approaching the condition—the condition vaguely resembles a section of rollercoaster,
albeit a gentle one. This is not the sort of condition that can only be viewed as a “mere
nonalignment of two horizontal slabs,” even though a nonalignment is physically what
caused plaintiff’s fall. (Kasparian v. AvalonBay Communities, Inc., supra,
156 Cal.App.4th at p. 27; see Fielder, supra, 71 Cal.App.3d at p. 734; cf. Whiting, supra,
9 Cal.2d at pp. 164–166 [identifying a gradual rise in a sidewalk slab from nothing to
three-quarters of an inch above the adjoining slab as a minor defect].) Reasonable minds
could differ as to the scope of the condition—and therefore its nature—based on the
photographs admitted and the testimony of plaintiff and his expert that plaintiff was, in
effect, encountering both defects at once. While plaintiff’s feet were crossing the first
defect, his brain was focused on how to navigate the second defect. The evidence
supports a view that the dangerous condition comprised the first defect, the second defect
20 feet beyond it, and the “weird sort of downslope and upslope” in between the two.
In Fielder, the only aggravating factor the plaintiff could summon to show the
three-quarter-inch sidewalk misalignment where she tripped was not trivial was evidence
that another similar defect existed 125 feet away. (Fielder, supra, 71 Cal.App.3d at
p. 726.) The court rejected this as an aggravating factor because “a second defect that
remote in distance could not reasonably be argued to have increased the danger of the
primary defect.” (Ibid.) Here, however, a fact finder could reasonably conclude, either
on their own or by crediting the expert testimony, that the second defect some 20 feet
away increased the danger of the first defect for joggers, who are foreseeable users of
sidewalks. (See § 830, subd. (a) [dangerous condition is one that creates a substantial
risk of injury when the property “is used with due care in a manner in which it is
reasonably foreseeable that it will be used”].)
13.
We agree with the City that Dr. Walsh’s expert opinion that the second defect
increased the danger of the first defect is not “determinative”; but we cannot agree that
his opinion testimony is “irrelevant.” True, “ ‘expert opinions on whether a given
condition constitutes a dangerous condition of public property are not determinative.’ ”
(Thimon v. City of Newark, supra, 44 Cal.App.5th at p. 755, italics added.) “[T]he fact
that a witness can be found to opine that [a given] condition constitutes a significant risk
and a dangerous condition does not eliminate this court’s statutory task, pursuant to
section 830.2, of independently evaluating the circumstances.” (Davis v. City of
Pasadena, supra, 42 Cal.App.4th at p. 705, italics added.) However, Dr. Walsh did not
opine that the stretch of sidewalk at issue was a dangerous condition of public property,
which we would indeed discard as an opinion offering an ultimate legal conclusion under
the cases just cited.11 Rather, Dr. Walsh explained the science behind how and why the
existence of another defect 20 feet away could alter the risk of the first defect for
joggers—something a lay person might not readily grasp—potentially broadening a fact
finder’s view of what area constituted the condition. The City cites Fielder’s statement
that “in this area there is no need for expert opinion” because “[i]t is well within the
common knowledge of lay judges and jurors just what type of a defect in a sidewalk is
dangerous.” (Fielder, supra, 71 Cal.App.3d at p. 732.) But Fielder was rejecting expert
testimony “that the defect was dangerous, due to its depth.” (Ibid.) This sort of intrinsic
danger would indeed be readily assessable by lay persons on their own; whereas, the
impact of a condition further down the road might require expert explanation. And again,
Dr. Walsh was not giving a mere legal conclusion that the condition was dangerous.
Expert opinions can assist courts in determining whether “sufficient evidence has been
presented so that reasonable minds may differ as to whether the defect is dangerous.”
(Id. at p. 734.) That assistance simply cannot come in the form of a pure legal
11 Dr. Walsh attempted to give such an opinion, but the trial court struck that portion of his
testimony at the City’s request.
14.
conclusion; nor can the court rest on the expert’s opinion alone, without independently
evaluating the circumstances. Here, Dr. Walsh’s explanation of the second defect’s
impact on a person jogging over the first defect provides a basis for reasonable minds to
differ as to the scope of the area that constituted the dangerous condition at issue, and
therefore its nature and associated risk.
Reasonable minds could also differ as to the quality of the first defect—the one
that physically tripped plaintiff—alone. The trial court itself, in denying the City’s
motion for nonsuit, observed that the lip of the first defect started out as a straight edge
on the left-hand side but then grew “jagged” across the rest of the lip, as though there had
been some past attempt at grinding it down. In our own estimation, exhibits 1 through 4
indeed depict a rough and ragged top edge of the raised lip across most of the first defect.
A fact finder could reasonably view the roughness of the lip as increasing the risk of
catching a pedestrian’s toe as they cross. (See Barone v. City of San Jose (1978)
79 Cal.App.3d 284, 291 (Barone) [reversing grant of summary judgment for the city in
part because photos of the one-inch sidewalk elevation depicted an “irregular and jagged
break,” presenting questions of fact for the jury].)
Accordingly, “reasonable minds could differ as to whether the nature and quality
of the [condition] at issue presented a substantial risk of injury,” whether viewed as a
whole or as just the first defect. (Stathoulis, supra, 164 Cal.App.4th at p. 570.) This
weighs against deeming the condition trivial as a matter of law.
2. Obstructions
Turning to the next factor, the City argues that the sidewalk condition must be
held trivial as a matter of law because it was “open and obvious.” Plaintiff admitted at
trial, and does not now dispute, that he was “familiar with” the existence of both the first
and second defects, from having jogged frequently in that area for some two years before
the incident; and that he in fact saw the first defect that day before it tripped him. It is
also undisputed that the first defect was “clearly visible” from 25 feet away. At the same
15.
time, according to Dr. Walsh, the previously mentioned layer of pine needles obstructed
the base of the first defect, making it difficult to judge the full height of the rise between
the slabs of sidewalk. Our review of exhibits 1 through 4 confirms that a significant
accumulation of dirt and pine needles appears all along the base of the first defect, except
at its outermost edges. Even with the benefit of focused inspection, we cannot see past
the debris to determine where the two slabs of sidewalk meet. Thus, although the overall
condition was clearly visible, reasonable minds could differ as to whether the full depth
of the first defect and its attendant danger would have been apparent to an approaching
jogger. (Cf. Gilbert v. City of Los Angeles (1967) 249 Cal.App.2d 1006, 1010 [noting in
the assumption of risk context that viewing an object is not the same as knowing the
magnitude of its risk].) That the same level of pine needles skirted the base of the first
defect on every other occasion that plaintiff safely traversed this stretch of sidewalk does
not change the fact of their continual obstruction.
The City contends this case is “virtually indistinguishable” from Huckey, where
the Fourth District Court of Appeal affirmed a grant of summary judgment for the city
defendant, in part because the sidewalk height differential was in “plain sight and,
therefore, would have been avoidable to a pedestrian walking on the sidewalk and
approaching the height differential ‘with due care.’ ” (Huckey, supra, 37 Cal.App.5th at
p. 1109.) Huckey dealt with a slightly lower sidewalk elevation ranging from nine-
sixteenths of an inch on one end and up to one and seven thirty-seconds inches at the
other end (with no broken or jagged edges), with “some dirt and leaves in and near the
height differential.” (Id. at pp. 1095–1096, 1108–1109.) After reviewing the
photographs, the court concluded that none of the debris “substantially obscured the
height differential from a pedestrian’s view.” (Id. at 1109.) Leaving aside the greater
depth and roughness of the instant elevation, we are unable to say the same after
reviewing the present photographs. A reasonable fact finder could well view the layer of
16.
dirt and pine needles against the base of the first defect as substantially obscuring its
height differential.
Accordingly, although all would (and the parties here do) agree that the sidewalk
was visibly uneven, the layer of debris lodged against the base of the first defect can
reasonably be viewed as an obstruction sufficient to prevent a careful pedestrian from
knowing the extent of its danger. This partial obstruction serves as another aggravating
circumstance, in addition to the back-to-back defects and rough lip of the elevation,
increasing its dangerousness. This factor weighs moderately against ruling the condition
trivial as a matter of law.
3. Lighting and Weather Conditions
There was no testimony regarding the time of day or weather conditions when
plaintiff fell. From plaintiff’s testimony that he typically jogged around his
neighborhood after work, it can be inferred that the fall occurred in the late afternoon or
early evening. The absence of testimony that it was dark or inclement, combined with
the photos taken in the daylight the following day, support an inference that poor lighting
and weather did not contribute to the condition’s dangerousness. This inferable
circumstance weighs in favor of deeming the condition trivial as a matter of law.
4. Prior Accidents and Plaintiff’s Familiarity with the Area
The City presses most strenuously on its arguments that (1) plaintiff, himself,
“safely traversed this particular sidewalk some 300 times before without incident,” and
(2) there is “no evidence of any prior accidents on this section of sidewalk.”
Beginning with the second assertion, it is well established that the occurrence or
nonoccurrence of prior similar accidents at the same site is “ ‘relevant to the
determination of whether a condition is dangerous.’ ” (Lane v. City of Sacramento
(2010) 183 Cal.App.4th 1337, 1346 [regarding absence of prior accidents]; see Barone,
supra, 79 Cal.App.3d at p. 290 [occurrence of prior accidents is normally “sufficient to
raise an issue of fact concerning ‘dangerousness,’ thereby precluding a court from finding
17.
the defect to be trivial as a matter of law”].) Here, the record indeed contains no
evidence of prior accidents at the location where plaintiff fell. However, that is not to say
the evidence showed a definite lack of prior similar accidents. The City’s public works
director testified that he was “not aware of any complaint” lodged regarding conditions
on the west side of Fox Street, but he confirmed that he had not checked the records so he
could not affirmatively say that no complaints had been registered. The City’s manager
likewise testified that he was not aware of anyone who was injured in that area, nor had
he heard of any complaints regarding the sidewalk there; but no testimony was elicited as
to what, if any, supporting records check he conducted. And the former mayor merely
testified in deposition that he was not aware of any tripping incidents on the west side of
Fox Street prior to the summer of 2017, about two years before plaintiff’s fall. This
combined testimony, at best, supports a weak inference that the offending condition had
not caused prior accidents based on these three individuals having not personally heard of
any such accidents.
Still, plaintiff’s own extensive history of jogging along that part of Fox Street
some 300 times over the previous two years without incident bolsters this factor insofar
as the condition had never previously harmed plaintiff, himself. Even assuming there
was airtight evidence that the condition had never caused anyone to trip and fall, “the
absence of other similar accidents is [not] dispositive of whether a condition is
dangerous,” nor does it “compel[] a finding of nondangerousness absent other evidence.”
(Lane v. City of Sacramento, supra, 183 Cal.App.4th at p. 1346.) It is simply one factor
that weighs in favor of dubbing the condition trivial as a matter of law.
Plaintiff’s extensive history of jogging over that stretch of sidewalk also bears on
the oft cited factor of the given plaintiff’s level of familiarity with the area where they
tripped. We respectfully part ways with the Court of Appeal precedent weighing a
particular plaintiff’s familiarity with the defect as part of the dangerous condition
18.
analysis. In our view, individual familiarity is not a proper factor for consideration
within the trivial defect doctrine.
The existence of a dangerous condition is something a plaintiff must plead and
prove as part of establishing the element of duty. (Huckey, supra, 37 Cal.App.5th at
p. 1104; Caloroso, supra, 122 Cal.App.4th at p. 927.) As when establishing duty in a
general negligence claim, one establishes a condition’s dangerousness (or conversely, its
triviality) for a section 835 claim by reference to its reasonably foreseeable use by
reasonably careful users as a class—not the particularities of the plaintiff who happens to
have the misfortune of being injured by the condition. (See Ballard v. Uribe (1986)
41 Cal.3d 564, 572–573, fn. 6 [“[A] court’s task—in determining ‘duty’—is not to decide
whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party.”]; cf. Metcalf v.
County of San Joaquin (2008) 42 Cal.4th 1121, 1136 [reading §§ 830 & 835, subd. (a)
together as “reflect[ing] an ordinary-negligence standard”].)
This fundamental principle is reflected in the section 835 case law recognizing that
a condition’s dangerousness can be established even when the plaintiff did not use due
care when encountering it. (See Castro v. City of Thousand Oaks (2015)
239 Cal.App.4th 1451, 1458–1459 [“[T]he fact the particular plaintiff may not have used
due care is relevant only to [their] comparative fault and not to the issue of the presence
of a dangerous condition.”]; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768
[“The status of a condition as ‘dangerous’ for purposes of the statutory definition does
not depend on whether the plaintiff … [was] actually exercising due care but on whether
the condition of the property posed a substantial risk of injury to [hypothetical] persons
who were exercising due care.”].)
19.
However, several Court of Appeal cases nevertheless treat the “plaintiff’s
knowledge of the area” as a factor to be considered in determining whether a defect is
trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105; see Stathoulis,
supra, 164 Cal.App.4th at pp. 567–568 [interchangeably describing this factor as
“plaintiff’s knowledge of the conditions in the area” and “plaintiff’s knowledge of the
area”].) The City emphasizes plaintiff’s undisputedly high level of familiarity from
having jogged this stretch of sidewalk some 300 times over a two-year period before his
accident. Finding nothing in the reasoning of Huckey or Stathoulis to justify a departure
from general methods of assessing duty, however, we conclude that this unique fact about
this particular plaintiff does not bear on the triviality of the defect encountered.
Although Huckey listed the plaintiff’s knowledge of the area as one of the factors
courts consider, the court did not apply that factor in its analysis. (See Huckey, supra,
37 Cal.App.5th at p. 1105.) Stathoulis, on which Huckey relied for the knowledge factor,
reversed a grant of summary judgment for the city defendant because a triable issue
existed as to the nature and quality of the defect at issue—a set of one-inch-deep gouge
marks or holes in the street. (Stathoulis, supra, 164 Cal.App.4th at pp. 569–570.) In
doing so, Stathoulis listed a plaintiff’s knowledge of the area as a factor for determining
triviality, and as part of the analysis it briefly noted that plaintiff had never before visited
the street at issue. (Id. at pp. 567–568.) Stathoulis did not say in which direction that
factor cut, however, focused as it was on the questions regarding the shape and nature of
the holes. Stathoulis cited several Court of Appeal cases in support of the list of factors it
summarized at the outset, but the only one of those cases to identify a plaintiff’s level of
knowledge of the area as an appropriate factor is Johnson v. City of Palo Alto (1962)
199 Cal.App.2d 148, 152. (See Stathoulis, at p. 567.)
20.
In declining to hold trivial a one-half to five-eighths of an inch sidewalk height
differential under the predecessor Public Liability Act of 1923,12 Johnson v. City of Palo
Alto, supra, 199 Cal.App.2d 148 briefly noted that the plaintiff was injured during her
“first sojourn down [the street] in this particular direction.” (Id. at p. 152.) Like
Stathoulis, Johnson v. City of Palo Alto does not explain the import of this fact. Based on
the plaintiff-friendly outcome of both cases, at most they might support a proposition that
a plaintiff’s lack of familiarity weighs against a finding of triviality. Accordingly, these
cases do not persuade us of the utility of considering a plaintiff’s prior familiarity with
the area where the injury occurred.
The City directs us to two earlier cases that also refer to their plaintiffs’ prior
awareness of the sidewalk conditions on which they tripped—although neither formally
identifies that as a factor to be considered. (See Whiting, supra, 9 Cal.2d at p. 165; Dunn
v. Wagner, supra, 22 Cal.App.2d at pp. 53–54.) In Dunn, the Court of Appeal ruled a
one-inch sidewalk elevation trivial as a matter of law because the plaintiff had observed
the defect on numerous prior occasions and therefore “by the use of ordinary care could
have avoided the accident.” (Dunn, at pp. 53–54.) As in Stathoulis and Johnson v. City
of Palo Alto, however, the court failed to explain why the specific plaintiff’s prior
knowledge, and her implied failure to use due care on that occasion, should impact
whether the defect could be classified as dangerous to pedestrians in general.
This leaves us with our Supreme Court’s 1937 decision in Whiting, a case which
the City identifies as very similar to our own. There, the Supreme Court reversed a
12 The Public Liability Act of 1923 (former § 53050 et seq.), like the Government Claims
Act that replaced it in 1963, made government entities “liable for a ‘dangerous or defective
condition’ of public property, if it had notice thereof in time to remedy the condition.” (Meddock
v. County of Yolo (2013) 220 Cal.App.4th 170, 181 [noting the similarity of the laws in this
respect]; Stats. 1923, ch. 328, § 2, p. 675.) Although the Government Claims Act changed
various aspects of how public entities could be held liable for dangerous conditions (see Metcalf
v. County of San Joaquin, supra, 42 Cal.4th at pp. 1134–1135; Brown v. Poway Unified School
Dist., supra, 4 Cal.4th at pp. 829–836), cases under the Public Liability Act remain instructive in
assessing what constitutes a dangerous condition.
21.
posttrial judgment for the plaintiff, who had caught her toe on an uplifted edge of
sidewalk measuring three-quarters of an inch at its highest. (Whiting, supra, 9 Cal.2d at
pp. 164–166.) In the rather short opinion, the court listed the following series of facts
about the defect before summarily labeling it a “minor defect”:
“[The defect] had existed for many years in the same condition and
in a much traveled portion of the business section of the city. Many people
walked daily over the sidewalk at that point. The defect was plainly
visible. Its existence was common knowledge in the community. The
plaintiff herself knew of it. She tripped over it in the daytime while she was
walking toward the exposed side of the rise, without anything to obstruct
her vision of the sidewalk area. She had good eyesight, was an excellent
walker and frequently walked several miles in a day.” (Whiting, supra,
9 Cal.2d at p. 165, italics added.)
We do not read this brief mention of plaintiff’s personal knowledge, italicized
above, as requiring consideration of a plaintiff’s familiarity with the condition in the
triviality analysis. In the absence of any express explanation of how the court weighed
that particular fact, we read this sentence as more of a continuation of the previous
statement, emphasizing how commonly known the defect was.13 Evidence of
widespread knowledge of a defect could, arguably, inform the level of risk and resulting
duty in a way that a sole plaintiff’s singular knowledge of a defect cannot. However, in
13 Moreover, Whiting is primarily, if not entirely, a constructive notice case. Although the
Supreme Court, as just discussed, labeled the sidewalk elevation a “minor defect,” it did so on
the way to holding that such a minor defect was insufficient to impart constructive notice on the
city defendant. (Whiting, supra, 9 Cal.2d at p. 166; see Barone, supra, 79 Cal.App.3d at
pp. 288–289.) “[C]ourts have treated the question of whether a defect is too trivial to qualify as a
dangerous condition as distinct from the question of whether the defect is obvious enough to
impart constructive notice.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 520;
see id. at p. 525 [reading Whiting as holding a defect “not sufficiently obvious to impart
constructive notice”].)
To the extent Whiting informs the analysis of whether a defect can be ruled not dangerous
as a matter of law, we find it distinguishable primarily because the height differential is a
minimum of one and three-quarter inches in the present case, compared to the maximum three-
quarter-inch differential in Whiting. Further distinctions lie in the broader scope of the present
condition (encompassing back-to-back defects) and the partial obstruction by the pine needles
and debris.
22.
the instant case, there was no evidence that the particular condition at issue was known to
anyone but plaintiff, himself. We see no reason to factor plaintiff’s unique prior
knowledge into our assessment of whether there could be any disagreement on the level
of risk the defect posed to reasonable sidewalk goers in general.
Accordingly, we disregard plaintiff’s familiarity with the area and the specific
sidewalk condition in our triviality analysis.
III. Conclusion
On balance, the above factors do not combine to create a risk so trivial, minor, or
insignificant that the sidewalk condition must be held not dangerous as a matter of law.
Although the condition was visible on approach on an inferably clear, dry day and had
not harmed others or plaintiff in his many prior jogs, reasonable minds could still differ
as to its dangerousness based on the evidence of the first defect’s relatively large height
and rough edge, the presence of back-to-back defects, and the partial obstruction of the
pine needles and debris. The determination of the condition’s dangerousness was
properly left for the jury, whose verdict we will not overturn.
DISPOSITION
The judgment is affirmed. Pursuant to California Rules of Court, rule 8.278(a)(1),
plaintiff is awarded costs on appeal.
HILL, P. J.
WE CONCUR:
FRANSON, J.
SMITH, J.
23.
APPENDIX
Exhibit 1
24.
Exhibit 4
25.
Exhibit 6
26.