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It seems as though it is getting harder and harder to prevail in a premises liability/dangerous condition of public property type of case in California, with the judiciary seemingly expanding the application of the exceptions and exemptions to liability in favor of Defendants, many of whom are arguably better suited to bear the cost of the injuries caused by their own actions or omissions, let alone prevent the injuries from occurring in the first place.

A recent ruling from the First Appellate District in California affirmed dismissal of a dangerous condition case on summary judgment based on the Trivial Defect Doctrine.  In that case, named Crista Miller v. Pacific Gas and Electric, Plaintiff was walking down a sidewalk with a gradual decline when she tripped while stepping off of a metal plate covering an underground utility vault in the sidewalk somewhere in San Francisco.  The parties agreed that a “vertical misalignment” existed between the metal plate and the surrounding sidewalk by a height differential of between one-half to one inch.  Plaintiff claimed she did not see the height differential before she tripped because she was going downhill, looking eight to ten feet ahead of her, and the grade of the slope created an “optical illusion” that affected her depth perception that led her to see the sidewalk surface as level.

The Appellate Court applied both a two-step analysis (referenced in the Huckey v. City of Temecula and Nunez v. City of Redondo Beach cases) as well as a more recently developed “multi-factor” analysis (see Stack v. City of Lemoore) in concluding that the “vertical misalignment” of the metal plate cover and surrounding sidewalk constituted a trivial defect barring the lawsuit.

The two-step analysis involved consideration of the following:  the size and nature (the physical characteristics) of the defect itself; and whether the condition of the surrounding walkway or circumstances of the accident itself made the defect more dangerous than size alone.  While the other analysis involved consideration of multiple factors, it is important to note that both tests for determining whether a defect was trivial relied heavily on the size of the defect.

The Court of Appeal found the Defendants met their initial burden of demonstrating the condition(s) constituted a trivial defect based on the vertical misalignment of less than one inch, the lack of broken pieces or jagged edges on the metal plate or surrounding sidewalk, the lack of any obstruction to the visibility of the defect, and the lack of prior tripping incidents at the location.

They rejected the Plaintiff-Appellant’s arguments that City guidelines for repair of one-half inch or greater sidewalk height differentials had been accepted as the California standard for safe sidewalks, or that orders issued by the City subsequent to the fall to repair that section of the sidewalk would defeat the trivial defect showing by Defendants. The appellate court further rejected Plaintiff-Appellant’s argument that the circumstances of the accident, including the steep downward decline of the sidewalk, the weather (it had rained recently), the nighttime hour, and the crowds on the street, all combined to make the height differential less obvious than during the day.

In affirming the judgment, the Court of Appeal concluded that there was no evidence which would permit a reasonable trier of fact could conclude that the trivial sidewalk defect posed a substantial risk of injury to a foreseeable pedestrian exercising due care.

I believe many ordinary citizens and plaintiff attorneys alike would find it frustrating that there was seemingly no dispute that Defendant PG&E was responsible for creating the “vertical misalignment”.  It can be a tough pill to swallow to find out that, even where the target Defendant has created a condition that leads to injury, the law precludes holding the party liable, and many ordinary citizens (and California pedestrians) would be surprised to learn this area of law distinguishes between “responsibility” and “liability”.  And if we cannot rely on the party responsible for our injuries to be held responsible for them, then we all better watch our steps a little more closely.

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