2012-00130043-CU-PO

Kacey Oliver Pettit vs. City of Sacramento Nature of Proceeding: Motion for Summary Judgment

Filed By: Dierking, Sari Myers

Defendant City of Sacramento’s Motion for Summary Judgment is DENIED.

Moving party’s evidentiary objections are OVERRULED.

Plaintiff’s complaint alleges a single cause of action against the City for dangerous
condition of public property. Specifically, plaintiff alleges that on January 26, 2012,
plaintiff was riding his bicycle on the street in the vicinity of 3901 Fruitridge Road,
Sacramento. Plaintiffs bicycle tire encountered a differential in the concrete, and then
the front tire slipped into an open slot in the storm grate and caused him to be pitched
forward. The dangerous condition that created a substantial risk of the type of injury
incurred was a differential on the concrete and storm grate with bars running parallel to
the direction of traffic that were not bicycle safe. The street was at all times owned
and controlled by the City.

Defendant City moves for summary judgment on two grounds: that the subject
property did not pose a substantial risk of injury to those using it with due care, but the
risk was minor, trivial or insignificant. Govt. Code, sec. 830(a) and 830.2.

Alternatively, the City moves for summary judgment on the ground that plaintiff has no
evidence that a negligent or wrongful act or omission of a City employee created the
alleged dangerous condition and has no evidence that the City has actual or
constructive notice of the alleged dangerous condition prior to the subject incident.

Risk Was Minor, Trivial Or Insignificant

A condition is a dangerous or defective one if the hazard is one from which injury may
reasonably be anticipated to those properly using the area for the purpose intended.
[Citations.] Whether a particular condition is a dangerous or defective one is generally
a question of fact. Of course the condition must be one that is truly dangerous or
defective. If it is trivial then it is neither dangerous nor defective, and, as a matter of
law, the city is not liable. Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719, 730.
The Court cannot find triviality as a matter of law, if reasonable minds could differ on
the question of whether the condition was dangerous. Id. at 729.

Govt. Code, sec. 830(a) defines “Dangerous condition” to 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.

Govt. Code § 830.2 provides that “A condition is not a dangerous condition within the
meaning of this chapter 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.” Here, plaintiff was riding his bicycle on the City street in daylight, good weather, when
he was forced to ride in the gutter due to the movement of traffic. After going up and
over a “transfer” – an approximately 2 inch high bump in the pavement without losing
control of his bicycle, the one inch wide tire on his bicycle fell into the wider, parallel
spacing between the bars on the grate, stopping his bicycle and throwing him over the
handlebars.

Here, the Court notes that although the City is not the insurer of public safety, the City
has adopted a Bicycle Master Plan, approved by the City Council, which recommends
the replacement of old grates, such as this one, with bicycle friendly grate designs.
The plaintiff has provided evidence in opposition, reflecting that grates in the
neighborhood have been replaced with grates of a safer construction.

The Court cannot find based upon all of the circumstances before it, that reasonable
minds could not differ in concluding that the grate on which plaintiff was injured was a
minor, trivial or insignificant defect. The motion on this ground is denied.

Actual or Constructive Knowledge

Defendant further contends that plaintiff has no evidence that the City had actual or
constructive knowledge of the alleged dangerous condition prior to the subject
accident.

It is undisputed that the plaintiff has no evidence that a negligent or wrongful act or
omission of a City employee, within the scope of employment created the dangerous
condition. (UMF 5) Plaintiff also does not dispute that he has no evidence as to how
long the alleged dangerous condition existed prior to the subject accident. (UMF 7)
However, the Court notes that moving party has admitted that the drainage gate is at
least 22 years old.

The City asserts that no other accident has been reported at this location, and there is
no evidence that anyone else was injured here. Thus the City did not have actual
knowledge of the dangerous condition.

Gov. Code §§ 830-835.6 establish the parameters of public entity liability for an injury
caused by a dangerous condition of its property.

A public entity is liable for injury caused by a dangerous condition of its property if (1)
the plaintiff establishes that the property was in a dangerous condition at the time of
the injury, that (2) the injury was proximately caused by the dangerous condition, that
(3) the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred, and that (4) either: (a) A negligent or wrongful act or omission of
an employee of the public entity within the scope of his employment created the
dangerous condition; or (b) The public entity had actual or constructive notice of the
dangerous condition under Section 835.2 a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition. Govt. Code sec. 835.
Here, if the public entity had actual or constructive notice of the dangerous condition
under Section 835.2 a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition, liability may be found. Govt. Code § 835(b)

The plaintiff submits additional evidence that the City assumed a duty to inspect and
modify or replace the drainage grates which are not bicycle friendly, but has failed to
do so. (PMF 9)

The Court therefore finds that giving the plaintiff the benefit of every inference,
disputed material facts remain for determination by the finder of fact at trial. The finder
of fact could conclude that the evidence reflects that the City had constructive notice of
the existence of a dangerous condition of public property in the grate at issue here,
based upon the bicycle master plan adopted by the City Council.

The motion for summary judgment is therefore denied.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.