2012-00133018-CU-PO

Lita Bellamy vs. Isleton Chamber of Commerce

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Carr, John N.

Defendants City of Isleton and Isleton Chamber of Commerce’s motion for summary
judgment, or in the alternative, summary adjudication of issues is denied.

In this action, Plaintiff alleges that she suffered injuries when she fell while crossing the
street at an intersection during a yearly Father’s Day festival in Isleton when her foot
became stuck in a crack in the pavement. She alleges a single cause of action for
premises liability based on her contention that the roadway in question constituted a
dangerous condition.

The Court first notes that although the notice of motion indicates that it is one for
summary judgment and summary adjudication, the notice fails to indicate any issue
upon which summary adjudication is sought and thus the motion is treated as one for
summary judgment only.

Defendants’ separate statement includes the following: On the day at issue, it was
sunny with blue skies. Plaintiff does not wear corrective lenses. Plaintiff has attended
the Father’s Day festival for the past 15 years. The festival has not changed much in
terms of layout. The area where Plaintiff fell was near a food court near the
intersection of Main Street and E Street. Plaintiff was wearing cream-colored flip flops
when she fell. When Plaintiff arrived at the festival with her husband they walked
down Main Street and E Street then turned back towards the food court. Plaintiff was
walking towards the food court inside the brick section of the crosswalk when she fell.
Plaintiff does not know what her foot went into that caused her to fall but indicated that
it felt like she tripped over something. No one at the festival came forward to say what
happened.

Plaintiff does not know the exact spot where she fell and when looking at photographs
of the crosswalk could not identify the location. Plaintiff’s husband did not see what
caused Plaintiff to fall. Plaintiff did not inspect the area before she left and has not
inspected it since the incident. Plaintiff produced an engineering report contending
that there is a location on the outside edge of the sidewalk that has a 1” offset between
walking surfaces.

Defendants move for summary judgment on the basis that they have no duty to protect
Plaintiff against trivial defects and apparently because she cannot establish a causal
relationship between her fall and the alleged dangerous condition because she is
unaware of the exact location of her fall.
Trivial Defect

It is well settled that a property owner is not liable for damages caused by a minor,
trivial, or insignificant defect in his property. (Cadam v. Somerset Gardens Townhouse
HOA (2011) 200 Cal. App. 4th 383, 388.) The duty of care imposed on a property
owner, even one with actual notice, does not require the repair of minor defects. (
Ursino v. Big Boy Rests. (1987) 192 Cal. App. 3d 394, 398.)

“A condition is not a dangerous condition within the meaning of this chapter if the trial
court 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.” (Gov’t Code § 830.2.) A
court is permitted to determine that a particular defect is trivial as a matter of law
“when reasonable minds can reach but one result.” (Bartell v. Palos Verdes Peninsula
School District (1978) 83 Cal.App.3d 492, 497.) To elucidate, under appropriate
circumstances a court may determine, as a matter of law, that a given walkway defect
is trivial. (Gov’t Code § 830.2.) However, it cannot make that determination if
competing and conflicting evidence of the size, nature and quality of the defect, or the
circumstances surrounding the plaintiff’s injury, raise triable factual questions as to
whether the defect or conditions of the surface presented a danger to pedestrians
exercising ordinary care. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156
Cal.App.4th 11, 29-30.)

Here, the Court finds that Defendants failed to meet their initial burden to demonstrate
that they are entitled to judgment as a matter of law on based on the trivial defect
doctrine. Indeed, other than simply block quoting cases discussing a trivial defect,
they fail to apply any of the facts set forth in their separate statement to the relevant
law. (Mot. 5:10-7:24.) There is no analysis and the Court will not carry defendant’s
burden to articulate why the subject roadway at issue constituted a trivial defect. On
this basis alone, the motion on the ground that the defect at issue is a trivial defect is
denied and the burden never shifted to Plaintiff to demonstrate a triable issue of
material fact.

In any event, even if Defendants had met their burden, Plaintiff has shown numerous
triable issues of material fact regarding the condition of the roadway at issue and thus
shown that this Court cannot on this motion, determine that the particular defect is
trivial as a matter of law because reasonable minds could reach more than one result.

No California court has expressly adopted the tape measure test to determine whether
a defect in the sidewalk is trivial as a matter of law. Obviously, such a rigid test is
unsound. The size of the defect is a factor, an important factor, that must be
considered, but it is not the only factor. The cases all declare that all of the conditions
surrounding the defect must be considered in the light of the facts of the particular
case, before the issue can be determined. All of the cases purport to adopt the same
rule — if reasonable minds can differ on the question it is one of fact, and that it is only
when reasonable minds must come to the conclusion that the defect is so trivial that a
reasonable inspection would not have disclosed it, that the question becomes one of
law. Each case must be determined on its own facts. (Fielder v. City of Glendale
(1977) 71 Cal. App. 3d 719, 731.)

Thus, “obviously, no fixed measurement in inches of height, depth, or width of an
obstruction or depression can be adopted or established as a standard because a
determination of whether a condition is trivial or not depends on all of the
circumstances surrounding the existence of the conditions in the particular case.” (
Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 51.) As
noted, “The size of the defect is only one circumstance to be considered, as no court
has fixed an arbitrary measurement in inches below which a defect is trivial as a matter
of law and above which it becomes a question of fact as to whether or not the defect is
dangerous.” (Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43.) In addition, “[t]
he court should also consider the weather at the time of the accident, plaintiff’s
knowledge of the conditions in the area, whether the defect has caused other
accidents, and whether circumstances might have either aggravated or mitigated the
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risk of injury.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4 559, 567.)

Plaintiff has submitted evidence regarding the condition of the subject property and the
surrounding circumstances which show that the whether the condition of the property
was dangerous or not is a question of fact. Here, the incident occurred during a busy
festival with crowds and numerous distractions. (Plf’s Depo. 64:7-8, 124:8-16; A.
Bellamy Depo. 29:16-25) Plaintiff estimates that there were more than 20 people in
the crosswalk at the time she fell. (Plf’s Depo. 64:7-8, 124:8-16.) Indeed,
circumstances which impede one’s ability to detect a defect are aggravating factors
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which must be considered. (Stathoulis, supra, 164 Cal.App.4 567-568.) Further,
Plaintiff submitted photographic evidence showing a one-inch variance in the sidewalk
which spanned the entire intersection on both edges of the crosswalk. (O’Connor
Decl. Exhs. A-C) In addition the roadway and crosswalk appear to be in disrepair as
evidenced by pieces of concrete and asphalt that have broken away. (Plf’s Depo.
Exhs. 4D, 4F, 4G, 4I; O’Connor Decl. Exhs. A-C) Courts have recognized that the fact
that the subject pathway had broken pieces can substantially increase the risk of injury
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from a property defect. (Stathoulis, supra, 164 Cal.App.4 567.) These broken pieces
in connection with the one-inch variance in the sidewalk raise triable issues of material
fact regarding whether the condition of the property was dangerous or not.

An additional aggravating circumstances is seen from Plaintiff’s evidence that on the
day in question, the streets are blocked off and people are allowed to use the streets
as open areas to walk. (Plf.’s Depo. 61:2-64:8, 66:22-67:5, 96:3-111; A. Bellamy
Depo. 26:15-27:10, 29:16-25) Plaintiff’s evidence shows that she was walking
perpendicular across the crosswalk’s borders and that there were cracks in the cement
in her path in addition to the one-inch variance in the sidewalk. (Plf.’s Depo. 118:6-11,
128:6-129:2, Exhs. 4D, 4F, 4G, 4I;; A. Bellamy Depo. 33:24-36:20, Exh. 1; O’Connor
Decl. Exhs. A-C.) Plaintiff’s husband testified that he saw cracks in the crosswalk’s
borders. (A. Bellamy Depo. 30:3-36:21, 40:4-42:2, Exh. 1.) Thus, the way the
roadway was used on the day in question also creates a triable issues of material fact
regarding whether the condition of the property. Indeed, a trier of fact could infer that
the specific use of the roadway allowed on the day in question, allowing pedestrians to
cross the crosswalk at right angles and directly encounter the one inch offset and the
cracks in the borders increased the likelihood that someone would trip and fall.

The Court notes that Defendants argued that Plaintiff’s expert report was irrelevant as
the question of what constitutes a trivial defect is not a matter requiring expert
testimony. The Court need not consider such argument because even if correct, it did
not rely upon the expert’s opinions in finding a triable issue of material fact, though it
did consider photographs and factual information from the report regarding the subject
roadway as that information was based on the expert’s personal inspection of the
roadway and is simply percipient witness information.

Defendants also seem to suggest that the motion must be granted because Plaintiff is
not a credible witness because she denied obvious pre-existing medical conditions
which she had prior to the fall. However, a witness’ credibility is a matter best left to
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the trier of fact. (E.g., Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4 832, 840
[“trial court may not grant summary judgment based on the court’s evaluation of
credibility”].)

The Court need not consider Plaintiff’s remaining arguments as the totality of the
above demonstrates that there are triable issues of material fact regarding the
condition of the property and the Court cannot determine as a matter of law that the
condition of the roadway was trivial. As a result, the motion for summary judgment on
the basis that Defendants owed no duty to protect from trivial defects is denied.

Causation

Defendants also argue that Plaintiff’s premises liability claim fails because there is no
evidence they took any affirmative steps to cause the alleged defective condition and
Plaintiff does not know where or how exactly she fell.

The Court first notes that with respect to its conclusory statement that Plaintiff has no
evidence that Defendants took any affirmative steps to cause the condition, affirmative
steps are not required. Indeed, “[i]t is well settled that a city will be charged with
constructive notice of substantial defects in the public sidewalk which have existed for
such a length of time and are of such a conspicuous character that a reasonable
inspection would have disclosed them. (Clark v. City of Berkeley (1946) 143
Cal.App.2d 11, 15.) Defendants make no argument that they had no constructive
notice.

Plaintiff’s evidence established triable issue of material fact regarding whether the
roadway in question was a substantial factor in Plaintiff’s fall. Plaintiff’s evidence
demonstrates that she testified in her deposition that she was walking across the
crosswalk and put her feet directly on the south edge of the crosswalk when she
tripped. She drew the location of her fall on two separate photographs. (Plf.’s Depo
112:18-115:15, 115:18-118:13, Exhs. 4C, 4D.) Her husband also testified and marked
the fall location on a drawing of the intersection. (A. Bellamy Depo. 30:3-36:21, 40:4-
42:2, Exh. 1) He specifically stated that Plaintiff fell “right in the crosswalk. The
crosswalk, and there were borders. Once she fell, it happened so fast, got to get her
up. And I recall looking down, and the street was cracked, the concrete, because I
looked. I was wondering what happened. There was a crack in the borders.” (A.
Bellamy Depo. 30:14-19.) Plaintiff’s testimony and her husband’s testimony are
consistent with respect to the location of the fall and at a minimum create triable issue
of fact regarding whether Plaintiff can prove the location of the fall. These statements
are admissible pursuant to Evidence Code § 1240 and also create triable issues of
material fact as to whether the alleged dangerous condition was a substantial factor in
causing Plaintiff’s fall. The motion on the basis that Plaintiff cannot show causation is
denied.
As a result, the motion for summary judgment is denied in its entirety.

The Court notes that both Plaintiff and Defendants included objections in their
responses to the others’ separate statement of undisputed material facts. The Court,
however, only rule upon objections to specific evidence.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D). Plaintiff’s counsel is ordered to notify Defendant
immediately of the tentative ruling system and to be available at the hearing, in person
or by telephone, in the event Defendant appears without following the procedures set
forth in Local Rule 1.06(B).

Plaintiff shall prepare for the Court’s signature and order pursuant to CCP § 437c(g)
and CRC Rule 3.1312.