Case Number: SC119363    Hearing Date: August 13, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ALAN MITTELMAN,
Plaintiff(s),
vs.

GLADSTONES, ET AL.,
Defendant(s).

Case No.: SC119363

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #24
August 13, 2014

Defendants, SBE Entertainment Group, LLC and Gladstones Motion for Summary Judgment is Denied.

1. Facts
Plaintiff, Alan Mittelman filed this action against Defendants, Gladstones and SBE Entertainment Group, LLC for premises liability and general negligence arising out of a trip and fall that occurred on Defendants’ premises.

2. Undisputed Facts
Most of the facts relating to the fall are undisputed, and the motion for summary judgment turns mostly on application of the law to the facts. The facts, stated in the light most favorable to Plaintiff, are as follows:
On 8/12/12, Plaintiff fell on an elevated wooden plank at the base of the steps on Defendant’s outside patio. Plaintiff was having lunch with his family, and got up to get a view of the ocean. He went over to a viewing area, but could not see well. He decided to walk down two stairs to another area where he thought the view would be better. There was a crowd on the two stairs, which caused Plaintiff to step down the stairs sideways. The incident occurred between two and three p.m. Essentially, there were two stairs that led to a landing area. At the base of the landing area, one of the planks was elevated by approximately ¾” of an inch. There was a handrail on the stairs, but it did not extend all the way to the bottom, so one could not continue to hold the handrail when one reached the landing area. When Plaintiff reached the landing area, his foot was sideways when it came in contact with the elevated plank, and that caused Plaintiff’s foot to roll and Plaintiff to fall down.

3. Motion for Summary Judgment
Defendant moves for summary judgment, contending the ¾” deviation is trivial as a matter of law. Defendant supports its motion primarily with the fact that the deviation is merely ¾”, but also with the Declaration of John Brault, a full-time biomechanics consultant and expert in the field.

Plaintiff opposes the motion, arguing first that the trivial defect doctrine is not subject to expert testimony, and second that there are triable issues of material fact concerning whether the defect was trivial in light of complicating factors.

a. Trivial Defect Doctrine
A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. The “trivial defect” defense can be asserted by governmental and non-governmental defendants. (Robson v. Union Pacific R. R. Co. (1945) 70 Cal.App.2d 759; Graves v. Roman (1952) 113 Cal.App.2d 584.) Thus, the question is whether the subject defect was, in fact, trivial. Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)

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. The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.) The Fielder court, after reviewing various appellate decisions involving defective walkways, concluded that the variance in these decisions as to what size of a depression, break, or nonalignment in a sidewalk constituted a mere trivial defect could be reconciled on the basis of whether there existed aggravating factors, such as lighting, debris, or a history of other similar injuries and thus rejected a rigid application of a “tape measure” test.
In Fielder, a pedestrian, who allegedly tripped on raised edge of segment of sidewalk and suffered a fractured femur as result of her fall, sued the City of Glendale. The appellate court held that: (1) it is for court to determine whether as matter of law a given defect in a sidewalk is not dangerous and (2) where the only facts alleged concerning whether the ‘defect’ was dangerous was evidence as to the depth of the depression and no evidence was presented as to any other surrounding circumstances or to other injuries to other persons on same spot, the approximate three-quarter-inch depression in the sidewalk at issue was not dangerous as matter of law. The Fielder court also disregarded the testimony of plaintiff’s expert that the defect was dangerous, reasoning that “there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Fielder, supra, at p. 732.)

In Ursino, the plaintiff was walking on a sidewalk on the defendant’s property and tripped over the raised edge of one of the concrete sections of the sidewalk. The raised edge was no more than three-fourths of an inch, the accident occurred in the morning, the weather was fair and dry, nothing concealed the defect, plaintiff had frequented the restaurant on an average of once per week over 15 years, the raised edge had been there for between one to five years, neither party knew of any prior similar incidents, the plaintiff’s walking pattern was affected by her age, and 32 photographs of the sidewalk area at issue confirmed, to the trial and appellate courts, that reasonable minds could not differ and that the defect was in fact trivial.. (Ursino, supra, at pp. 396-397.)

In Kasparian, the plaintiff, an elderly tenant, had sustained serious injuries when she tripped over a recessed drain in the ground in an apartment complex. In overruling the trial court’s grant of summary judgment in favor of the defendant based on the trivial defect doctrine, the appellate court held that the trial court only focused on the depth of the recession and ignored the recessed nature of the drain when viewed in the context of the surrounding circumstances. Kasparian’s expert stated that the hole created for the drain grate was uneven, with heights ranging from 1/32 inch to 5/16 inch. He opined that the size and profile of the depression created for the grate varied from one end to the other which posed a safety hazard to pedestrians who did not have any expectation that any drain was not flush with the surrounding brick pavers. The survey of the other drains in the immediate vicinity of the drain in question confirmed that those drain covers were flush with the brick/paver surface, and the slope to the drain was nearly level unlike the drain in question. The slope to the drain in question was dramatically more severe than that found in customary drains. Moreover, there were no warnings or color distinctions to warn pedestrians that the drain was recessed. The expert opined that the surrounding circumstances of the location of the accident made the area very hazardous given the drains from a distance appeared similar in color to the bricks/pavers, the drains were not distinguishable by color and texture from the surrounding pavers, and in the totality of the circumstances they could not be easily detected even in daylight. (Kasparian, supra, at pp. 28-29.)

Finally, in Caloroso, a pedestrian, who tripped over a crack in a walkway, and her husband sued the defendant property owner for personal injury and consortium damages. It was undisputed that the difference in elevation created by the crack in the walkway was less than half an inch at the highest point. Elevations ranging from three-fourths inch to one and one-half inches were found minor and trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74.) Following this line of cases, the Caloroso court held that the defect at issue should also have been deemed trivial as a matter of law, unless there was disputed evidence that other conditions made the walkway dangerous. In an attempt to raise a triable issue of material fact, the plaintiff submitted an expert declaration on the issue of triviality. Citing Evidence Code §801(a), the appellate court held that no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous. The photographs of the crack submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal. Regardless of whether a witness can be found to opine on the subject of a dangerous condition, the court must independently evaluate the circumstances. (Caloroso, supra, at p. 928, citing Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) The appellate court also found no foundation for the plaintiff’s expert’s opinion that noncompliance with certain building codes and standards made the crack dangerous. The expert failed to indicate that the codes and standards cited had been accepted as the proper standard in California for safe sidewalks. Moreover, there was no indication regarding whether such codes applied to existing walkways as opposed to new construction. Thus, the trial court properly concluded that the defect was trivial as a matter of law, and summary judgment was appropriate. (Caloroso, supra, at p. 929.)

b. Expert Opinion
The threshold issue is whether Defendant’s expert’s testimony is necessary on this issue. As noted above, in both Fielder and Caloroso, the courts have held that expert testimony in this area is not helpful. In Kasparian, however, the court considered the plaintiff’s expert’s testimony and found it raised triable issues of material fact. Thus, whether or not expert testimony is appropriate appears to vary from case to case.

In the instant case, the facts are straightforward and not in dispute. The only real issue before the court is whether the presence of a crowd, the lack of handrails at the base of the stairs, and/or some alleged construction defect constitutes a complicating factor that gives rise to liability for a defect that would otherwise be considered trivial. The Court has, therefore, disregarded the expert testimony in ruling on this motion.

c. Analysis
Per the authority above, a ¾” defect, without any complicating factors, is trivial as a matter of law. The issue before the Court at this time, therefore, is whether complicating factors exist in this case that render the issue of triviality one of fact for the jury to decide. Plaintiff contends that some combination of the crowd that gathered on the stairs, the lack of a handrail at the base of the stairs, and/or a construction defect on the stairs rendered the defect more than trivial.

Plaintiff’s main contention is that a crowd had gathered on the stairs, and therefore Plaintiff was required to “side-step” down the stairs, meaning he would land on the defect sideways, as opposed to straight on. Plaintiff also argues that the crowd made it less likely that he could see the defect.

Defendant argues (a) there is no evidence before the Court that there was a “crowd” on the stairs, and (b) even if there was, case law does not support imposition of liability under the circumstances.

Defendant’s first contention is that there is no real evidence of a “crowd” on the stairs. Defendant argues that Plaintiff, in deposition, admitted that he did not know how many people were on the stairs at the time of the incident. It is true that Plaintiff stated he did not recall the number of people; however, on the surrounding pages, Plaintiff described a situation where there were enough people on the stairs that he needed to side-step down the stairs in order to avoid them. A reasonable juror could find this testimony sufficient to establish that there were people on the stairs and that side-stepping to avoid them was appropriate.

The more difficult question is whether the existence of a crowd moves the defect from trivial to non-trivial. Defendant correctly notes that the two main cases upon which Plaintiff relies, Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368 and Martin v. Barclay Distributing Co. (1970) 13 Cal.App.3d 828 did not concern the trivial defect doctrine at all. Chance concerned contributory negligence, and Martin concerned foreseeability. Both cases did, however, hold that a restaurant has a duty to ensure that areas where crowds are gathering must be kept safe. Defendant attempts to distinguish the cases on the ground that the incidents in each occurred in the foyer, in the area where patrons were REQUIRED to gather prior to being seated, as opposed to an outdoor area, as in this case, where plaintiff chose to go but was not required to go. The Court finds this distinction irrelevant; whether the patrons were required to gather in the subject area or, as here, simply likely to gather in the subject area, should not be a determining factor as to whether liability will be imposed; in this case, it is clear that the subject area was a desirable one and that patrons routinely congregated there to obtain a view of the ocean.

The question remains, however, whether the presence of a crown can turn an otherwise trivial defect into a non-trivial defect. As noted above, neither Chance nor Martin concerned a defect that was trivial. This is a difficult issue. Several cases hold that one of the factors in determining whether a defect is trivial is whether something obscures the view of the defect. None of the cases hold that the subject “something” can be a crowd, but it seems reasonable that, if a crowd is routinely present, that crowd could be such a factor. Defendant may argue, at the hearing, that there is no evidence before the Court that a crowd is “routinely present”; this is technically true. The Court has, however, viewed the photos of the subject area, and finds that it appears to be an area where patrons would congregate for the purpose of obtaining a view of the ocean.

As Defendant notes, a handrail was not required for the two stairs; however, one was present, and the fact that it could not be used at the bottom of the stairs, coupled with the fact that a crowd was likely to be present, could lead a trier of fact to determine that the defect was more than trivial and that liability should be imposed. The motion for summary judgment is therefore denied.

The Court notes that Plaintiff also argues Defendant has a cross-complaint for construction defects, and Plaintiff argues the presence of construction defects gives rise to liability. The existence of a construction defect has not been shown at this point in the case, and Plaintiff provided no evidence of a construction defect. Plaintiff therefore failed to raise additional triable issues of material fact concerning the presence of a construction defect.

Dated this 13th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court