What is the Trivial Defect Defense in California?
In the recent appellate decision in Fajardo v. Dailey, Salvador Fajardo had filed his negligence action against Cynthia Dailey after he tripped and fell on an asphalt patch between two adjacent sidewalk slabs in front of Dailey’s property.
The trial court granted Dailey’s motion for summary judgment, ruling the condition of the sidewalk was a trivial defect.
Because Dailey did not meet her burden on summary judgment of showing the defect was trivial as a matter of law, and because Fajardo submitted admissible evidence creating a triable issue of material fact, the appellate court reversed.
One morning in December 2018, Fajardo went for a walk in his neighborhood. Fajardo was wearing shorts and “tennies.” As he ran to reach an intersection before the traffic light turned red, he caught his foot on a lift in the sidewalk in front of Dailey’s home and fell, hitting his hands and knee on the ground.
Fajardo filed this action in August 2019, against Dailey, the City of Monrovia, and the County of Los Angeles.
In his operative, first amended complaint, he alleged causes of action against Dailey for premises liability and “negligence and property damage.”
Fajardo alleged Dailey “negligently, carelessly and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned” the property in a dangerous condition, so as to cause him to trip and fall on the sidewalk surface.
Dailey moved for summary judgment on the ground the dangerous condition that Fajardo alleged caused injury amounted to nothing more than a trivial defect.
Dailey submitted Fajardo’s deposition testimony that, after he fell, he measured the height differential with his key and described it as a little over one inch. Fajardo also testified that the weather was sunny, that he had lived nearby for 13 years, and that he had previously walked on the sidewalk in front of Dailey’s house.
Dailey also submitted the declaration of an architect, Thomas Parco, who stated the sidewalk complied with applicable codes, statutes, and regulations and presented no unreasonable safety hazard.
Parco stated that the displacement in the concrete slabs where Fajardo fell created a rise of less than one inch and that the defect was trivial. Parco opined that the black asphalt patch made the displacement clearly visible and that, because Fajardo was traveling down the slope rather than up, it was less likely someone like him would trip.
Several photographs attached to Parco’s declaration of a tape measure someone placed on the sidewalk suggested the differential was between 10/16 and 13/16 of an inch. The trial court, however, sustained Fajardo’s objections to these unauthenticated photographs and to Parco’s legal conclusion the defect was trivial.
In opposition to the motion, Fajardo disputed Parco’s measurement of the height differential and argued the height of the displacement, combined with other aggravating factors, made the sidewalk defect nontrivial.
Fajardo submitted the declaration of a forensic analyst, Eris J. Barillas, who stated that she visited the site in February 2021 and that, although the asphalt patch had been removed and replaced with concrete, she measured the height differential as approximately one and three-sixteenths inches.
Barillas opined that the sidewalk defect had a vertical height differential between one and three-sixteenths and one and one-half inches in December 2018 when Fajardo fell and that the asphalt patch was at least 11 years old.
Barillas stated low lying height differentials often go unnoticed by pedestrians and are likely to pose a significant tripping hazard.
She also stated that a photograph Fajardo took two days after his fall showed the asphalt patch was substantially defective and deteriorated and contains jagged, uneven, and irregularly shaped edges, cracks and loose pieces of asphalt. Barillas opined the asphalt patch was a tripping hazard and not a trivial defect.
The court acknowledged that the parties disputed the size of the height differential, but concluded that Fajardo’s evidence the lift was one and three-sixteenths to one and one-half inches high does not create a triable issue of material fact, considering courts have found height differentials as big as 1 1/2 inches high to be trivial.
The court also rejected Fajardo’s contention jagged edges and irregular breaks in the asphalt patch were aggravating circumstances that precluded summary judgment.
The court found the obvious and distinctive nature of the asphalt patch, rather than making the sidewalk defect more dangerous, was consistent with a determination that the condition of the sidewalk was a trivial defect. The court granted Dailey’s motion for summary judgment, and Fajardo timely appealed from the ensuing judgment.
Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property.
But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property.
The so-called “trivial defect doctrine” recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.
The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.
In limited circumstances a court may determine a walkway defect is trivial as a matter of law.
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. But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.
In the sidewalk-walkway context, the decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.
Although a defect’s size may be one of the most relevant factors to the court’s decision, the court also must consider 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.
Moreover, size alone is not determinative of whether a rut presents a dangerous condition.
Application of a strict tape measure approach to determine whether a defect is trivial as a matter of law, disregards the fact that other factors and circumstances involved in a particular case could very well result in an entirely different conclusion from one arrived at by simply measuring the size of a defect.
The court must also consider whether the circumstances surrounding the accident made the sidewalk displacement more dangerous than a one-and-one-half-inch sidewalk lift otherwise would be.
In her motion for summary judgment, the only evidence Dailey presented on the condition of the asphalt patch was Parco’s statement that a black asphalt patch at the displacement provided a distinct color contrast to the surrounding grey concrete making it clearly visible.
But neither Dailey nor Parco submitted a photograph or other evidence of the condition of the asphalt patch at the time of the accident.
Even if Dailey had met her moving burden on summary judgment, Fajardo submitted evidence creating triable issues of material fact on the height differential.
Barillas stated that, in her opinion, the displacement was one and three-sixteenths to one and one-half inches and that the width of the defect was approximately 30 inches.
And unlike Parco, Barillas provided the basis for her conclusion. She stated she visited the site after the asphalt patch was removed and replaced with concrete, was able to take height measurements, and found a height differential of approximately 1-3/16 inches.
She attached photographs of the site taken by her company the day she visited showing the height differential was between 13/16 and one and three-sixteenths inches. Thus, there was a factual issue about the size of the defect.
Fajardo also submitted evidence creating a triable issue of material fact on whether circumstances or factors other than the height of the differential increased the danger.
Fajardo submitted the only photograph in the record that showed the asphalt patch in any detail: a black and white photograph he took approximately two days after he fell.
Although the copy quality is not the best, the dark-colored asphalt patch is clearly visible and appears to have a rough texture, an uneven surface, and a jagged edge where it meets the concrete. A few dark spots near the patch appear to be pieces of asphalt that have broken off from the patch.
Although Barillas did not provide the basis for her conclusion the height differential may have been as high as one and one-half inches at the time Fajardo fell, Dailey did not object to this portion of Barillas’s declaration.
Therefore, there was a triable issue of fact sufficient to defeat the motion.
LESSONS:
1. Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property.
2. A property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property.
3. The so-called “trivial defect doctrine” recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.
4. Size alone is not determinative of whether a rut presents a dangerous condition.