Case Name: Linda Forbes v. AvalonBay Communities, Inc., et al.
Case No.: 1-13-CV-258418

After full consideration of the evidence, the separate statements submitted by each party, and the authorities submitted by each party, the court makes the following rulings:

Currently before the Court is defendant AvalonBay Communities, Inc.’s (“AvalonBay”) motion for summary judgment as to the complaint of plaintiff Linda Forbes (“Plaintiff”). AvalonBay moves for summary judgment as to Plaintiff’s single cause of action for premises liability on the ground that it owes no duty to Plaintiff because the raised piece of concrete on the walkway was trivial as a matter of law.

To determine whether an alleged defect is trivial, “[f]irst, the court reviews the evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.) “If the ‘court determines … sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule … the defect is not dangerous as a matter of law.’ [Citation.] Conversely, where ‘the only evidence available on the issue of dangerousness does not lead to the conclusion … reasonable minds may differ, then it is proper for the court to find … the defect was trivial as a matter of law.’ [Citation.]” (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28.)

A. AvalonBay’s Initial Burden

“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law. [Citations.] However, it is also true that as ‘the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.’ [Citation.]” (Stathoulis, supra, 164 Cal.App.4th at p. 568.)

First, with regard to the type and size of the defect, AvalonBay submits evidence that the alleged defect was merely a gap between two adjoining concrete slabs on the walkway and the height differential between the slabs was no more than 5/8 of an inch. (See AvalonBay’s separate statement of undisputed material facts (“UMF”), No. 6.) As such, the type and size of the defect supports AvalonBay’s contention that the alleged defect was trivial. Second, AvalonBay provides evidence that no additional factors rendered the condition dangerous. Plaintiff was familiar with the area as she had walked on this portion of the walkway at least two times prior to the incident. (See UMF, No. 2.) On the day of the incident, it was sunny and there were no leaves, bark or rocks that would impair Plaintiff’s view. (See UMF No.3.) Moreover, the gap between the slabs did not include any hidden dangers such as jagged edges, exposed rebar, hollowed out parts, or broken pieces of concrete. (See UMF No. 8.) Thus, the additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person.

Accordingly, AvalonBay meets its initial burden of demonstrating that the defect was trivial as a matter of law. Consequently, the burden shifts to Plaintiff to raise a triable issue of material fact.

B. Plaintiff’s Burden

In opposition to AvalonBay’s motion, Plaintiff argues that the type and size of the defect suggests that it is not trivial as a matter of law. First, she contests AvalonBay’s measurement of the height differential between the two concrete slabs. In this regard, she submits several photographs of the gap between the concrete slabs to demonstrate that the height of the gap varied, with a 7/8 inch differential at the right edge and a 1-1/4 inch differential near the center of the walkway. (See Plaintiff’s evidence in opposition, No. 6.) While Plaintiff’s photographs are not entirely clear, it does appear that the height of the gap is not uniform and, in certain places, exceeded the 5/8 inch measurement submitted by AvalonBay. (See Chat Forbes Decl., ¶¶ 4-6, Exs. 1-3.) Nevertheless, using Plaintiff’s measurements, the height differential in the walkway is still within the range generally found to be trivial. (See Stathoulis, supra, 164 Cal.App.4th at p. 568.) As such, this evidence, on its own, is insufficient to establish a triable issue of material fact as to the whether the defect is trivial as a matter of law.

Next, Plaintiff asserts that reasonable minds could differ as to whether the gap was trivial because the height differential exceeded the industry standard for such walkways. In support of this contention, Plaintiff relies upon the testimony of Coughran, AvalonBay’s maintenance manager, and Gregory Bergman (“Bergman”), an estimator for co-defendant Calvac Inc. dba Calvac Paving and Sealing and a 35-year veteran of the paving industry. (See Plaintiff’s separate statement of undisputed material facts (“PUMF”), Nos. 5, 9.) Coughran testified that he hired Bergman to walk every walkway on the property and find any location that needed to be repaired. (See PUMF, No.5.) Rather than provide Bergman with a guideline for the conditions in need of repair, Coughran asked Bergman to identify any aspects of the walkway he considered to be a trip hazard. (See Coughran Depo., p. 13:4-7.) In turn, Bergman testified that the industry standard is to repair any gap between concrete slabs when a quarter-inch height differential is present. (See PUMF, No. 10). Bergman further stated that if a walkway had a change in elevation of more than one half-inch, it would undoubtedly need repair. (See PUMF, No. 11.) When shown several pictures of the area in which Plaintiff fell, Bergman affirmatively stated that the portion of the walkway needed to be repaired. (See PUMF, No. 16.)

When the only evidence presented as to the dangerousness of the defect is evidence of the depth of the depression, expert testimony does not prevent the court from finding that the defect was trivial as a matter of law. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732 [“For in this area 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.”].) Here, Bergman states that the gap was dangerous solely because the height differential exceeded the industry standard. (See PUMF, Nos. 10-11, 16.) As his testimony merely concerns the depth of the depression, it does not prevent the Court from determining that the defect is trivial as a matter of law.

As Plaintiff submits no additional evidence indicating that the alleged defect was dangerous, she fails to establish a triable issue of material fact concerning whether there was a dangerous condition of the walkway that AvalonBay had a duty to repair. Accordingly, AvalonBay’s motion for summary judgment is GRANTED.

The Court will prepare the order.