Case Name:   Meyering v. City of Sunnyvale

 

Case No.:       1-13-CV-239375

 

DefendantCity of Sunnyvale (“Defendant”) moves for summary judgment and, in the alternative, summary adjudication of plaintiff Patrick Meyering’s (“Plaintiff”) First Amended Complaint (“FAC”),

 

Plaintiff’s objections to evidence are OVERRULED for failure to comply with California Rules of Court, rule 3.1354(c).

 

Defendant’s objections to evidence are OVERRULED for failure to comply with California Rules of Court, rule 3.1354(c).

 

Defendant presents evidence that Plaintiff is 59-years old and a resident of Sunnyvale, where he has lived for ten years.  (City of Sunnyvale’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues (“UMF”), No. 1.)  Since January 10, 2012, Plaintiff has been a member of the Sunnyvale City Council.  (UMF, No. 1.)  On January 1, 2012, at approximately 5:10 in the evening, Plaintiff was walking alone along Morse Avenue.  (UMF, No. 2.)  Plaintiff fell while walking in front of 553 Morse Avenue.  (UMF, No. 3.)  Plaintiff cannot identify where on the sidewalk in front of 553 Morse Avenue he fell and he does not know what caused him to fall.  (UMF, No. 4.)  At the time of the incident, Plaintiff never looked to see what caused him to fall.  (UMF, No. 5.)  Several months after the accident, Plaintiff went to look at the sidewalk and still was unable to identify the area of sidewalk where he thinks he fell.  (UMF, No. 6.)  He went to the site again later and still could not identify the specific area where he fell.  (UMF, No. 6.)

 

Among other arguments, Defendant argues that Plaintiff does not know where he fell or what caused him to fall, so he cannot establish causation.  To establish liability for a dangerous condition of public property, Plaintiff must demonstrate that his injury was proximately caused by the dangerous condition.  (See Gov. Code, § 835.)  Causation is also a required element of a negligence cause of action.  (See Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1210-1211.)  Defendant’s evidence shows that Plaintiff does not even know what caused him to fall.  Plaintiff cannot identify any particular defect in the sidewalk that was the cause of the fall and resulting injury.  Therefore, Defendant has met its initial burden.

 

In opposition, Plaintiff submits evidence that sometime after the incident he returned to the scene and observed several defects in the sidewalk.  (Plaintiff’s Response to defendant’s Separate Statement of Undisputed Material Facts Submitted in Opposition to Defendant City of Sunnyvale’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Opp. UMF”), No. 6(a).)  One of the defects is close to the driveway at 553 Morse Avenue and, based on where Plaintiff’s body came to rest after he tripped and fell, that is the defect on which Plaintiff tripped.  (Opp. UMF, No. 6(a).)  One problem with Plaintiff’s evidence is that Plaintiff is simply speculating regarding the cause of his fall.  More importantly, however, the only evidence supporting Plaintiff’s assertion that he knows the cause of his fall is Plaintiff’s declaration submitted in support of his opposition to the instant motion.  Defendant’s evidence regarding the fact that Plaintiff does not know where he fell on the sidewalk or what caused him to fall is Plaintiff’s deposition testimony.  A party cannot raise a triable issue of material fact by contradicting prior deposition testimony with a later declaration.  (See Thompson v. Williams (1989) 211 Cal. App. 3d 566, 573-574; see also Daddario v. Snow Valley, Inc. (1995) 36 Cal. App. 4th 1325, 1340-1341.)  Therefore, Plaintiff has failed to raise a triable issue of material fact regarding causation.

 

Even if Plaintiff had admissible evidence sufficient to raise a triable issue of material fact on causation, Defendant correctly argues that the sidewalk where Plaintiff is alleged to have fallen is not a dangerous condition.  “‘Dangerous condition’ 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.”  (Gov. Code, § 830, subd. (a).)  The determination of whether a defect in a sidewalk is trivial involves several steps.

 

First, the court reviews 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.)

 

Defendant provides evidence that in 2012, after Plaintiff’s fall, an inspection of the sidewalk by Defendant showed that there were no displacements greater than ½ inch.  (UMF, Nos. 11, 13.)  Defects of less than ½ inch have been found to be trivial as a matter of law.  (See Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)  Defendant has met its initial burden on this issue.

 

In opposition, Plaintiff presents evidence that there was a height difference in excess of one inch.  (Opp. UMF, No. 11(c).) The evidence presented to support this assertion is the declaration of Gary Hesler, an expert in the area of highway and walkway safety.  The problem with the declaration is that Hesler states his opinion is based only on an examination of photographs of the sidewalk (Declaration of Monica Burneikis in Opposition to Defendant City of Sunnyvale’s Motion for Summary Judgment or in the Alternative Summary Adjudication, Exhibit 2, ¶ 2); Helser did not examine the sidewalk in person.  Helser does not explain how he can tell the height difference solely by looking at photographs.

 

As stated in one case: “An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound.”  (Kelley v. Trunk (1998) 66 Cal. App. 4th 519, 523.)  Further, “an expert opinion based on speculation or conjecture is inadmissible.”  (Lockheed Litigation Cases (2004) 115 Cal. App. 4th 558, 564.)  Helser does not provide a sufficient basis in his declaration for the Court to understand how Helser reached his conclusion regarding the height of the defect.  Consequently, Helser’s declaration does not provide evidentiary support for the proposition that there were any height displacements greater than ½ inch.

 

Other than the height of the displacement, the only other evidence regarding the totality of the circumstances surrounding the fall is that the subject sidewalk contained areas of chips and fractures on the right side of the subject sidewalk joint (Opp. UMF, No. 14(b)) and the incident occurred at dusk (Opp. UMF, No. 21(c)).  This evidence does not indicate the defect was sufficiently dangerous to a reasonably careful person.  Plaintiff is not alleged to have slipped or tripped on the chips or fractures.  The fact that it was dusk might indicate that it was somewhat darker than during the day, but it was not nighttime and Plaintiff does not provide evidence that it was difficult to see.  Consequently, the Court finds that the defect was trivial as a matter of law.

 

Given the above conclusion that Plaintiff cannot establish causation and that the defect in the sidewalk is trivial as a matter of law, it is unnecessary for the Court to reach the other arguments raised by the parties.  Defendant’s motion for summary judgment is GRANTED.