A Trivial Case

Construction defect cases leading to physical injury are rarely trivial, at least in the eyes of the injured party, but alas sometimes they are as the next case, Nunez v. City of Redondo Beach, 81 Cal.App.5th 749 (2022), demonstrates.

The Nunez Case

Monica Nunez, Vice President of Finance and Accounting at a restaurant chain and a part-time fitness instructor at a gym, tripped and fell on a public sidewalk in Redondo Beach. Ms. Nunez, who was in her forties, tripped following a group run when her back foot hit a sidewalk slab that was elevated at its highest point approximately 11/16 inches. Ms. Nunez landed on her left knee and right arm and in the process fractured her kneecap and elbow.

Ms. Nunez sued the City of Redondo Beach for her injuries alleging causes of action for dangerous conditions on public property under Government Code section 835, nuisance under Government Code section 815.2, and failure to perform a mandatory duty under Government Code section 815.6.

The City filed a motion for summary judgment arguing that the raised sidewalk slab was a “trivial” defect under the law. The City in its papers, and Nunez in her opposition, each included lay and expert declarations. Among the declarations filed by the City was a declaration by Frank Contreras, the City’s Public Works Manager, who stated that he had visited the site after the accident and measured the displacement of the sidewalk slab which he stated ranged from zero “to 5-8th of an inch, perhaps a millimeter more.”

Among the declarations filed by Nunez were declarations by Benjamin Monar, a forensic engineer, and Mark Burns, a senior forensic engineer at the same firm. In his declaration, Monar stated that the height differential of the sidewalk slab measured from one-half inch to 9/16th of an inch. Burns, in his declaration, stated that the sidewalk slab “presented an abrupt height differential,” that the “minimum toe clearance of a pedestrian . . . during normal walking stride is approximately 0.50 to 0.60 inches,” and that a height differential in excess of this magnitude created a substantial possibility that a pedestrian could trip if not conspicuous.

After taking the matter under submission, the Court granted the City’s motion for summary judgment, finding that the City had established that the raised sidewalk slab was trivial as a matter of law, and that Nunez had failed to present evidence raising a triable issue of material fact.

Nunez appealed.

The Appeal

On appeal, the 2nd District Court of Appeal explained that a public entity may be held liable for injuries caused by a dangerous condition on public property, and that a condition is considered “dangerous” if it “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. ” Known as the “doctrine of trivial defect,” while generally a question of fact, a court may determine that a defect is “trivial” as a matter of law if the court determines, “viewing the evidence most favorable to the plaintiff . . . 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.”

In the sidewalk-walkway context, explained the Court of Appeal, “[t]he decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway” but rather “[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest” including “whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.”

In short, explained the Court of Appeal, determining whether a defect is trivial as a matter of law involves two steps:

First, we review evidence of the “`type and size of the defect.'” If that analysis reveals a trivial defect, we then consider “`evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person,'” then we will “`deem the defect trivial as a matter of law.'”

And, here, held the Court of Appeal, when viewed in the light most favorable to Nunez, the evidence shows that the height differential of the sidewalk slab was at its highest point just under 3/4 of an inch. However, explained the Court, “[c]ourts consistently have held that – in the absence of aggravating factors – a sidewalk offset of this size (and higher) [3/4 of an inch to one and 1/2 inches] is a trivial defect as a matter of law. Moreover, explained the Court, the fact that the City would attempt to repair sidewalk elevation differentials of 1/2 inch or more does not create a triable issue of fact because “the City does not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard – only those defects that create a substantial risk of injury to a pedestrian using reasonable care.”

Conclusion

So there you have it. Not all construction defects on public property give rise to a claim for dangerous conditions on public property. If a defect is minor, trivial or insignificant, the court, viewing the evidence in the light most favorable to the plaintiff, can find that the defect is trivial as a matter of law.