Hills
Filed 8/6/13 Moore v. City of Beverly Hills CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
ANNE MOORE,
Plaintiff and Appellant,
v.
CITY OF BEVERLY
HILLS,
Defendant and Respondent.
B239683
(Los Angeles
County
Super. Ct.
No. SC109598)
APPEAL from
a judgment of the Superior Court
of
County.
Lisa Hart Cole, Judge.
Affirmed.
Bahar
│Law Office, Sarvenaz Bahar for Plaintiff and Appellant.
Law Offices
of Michael R. Nebenzahl, Michael R. Nebenzahl for Defendant and Respondent.
___________________________________________________
>
A visitor in Beverly Hills
fell on a public sidewalk. She has sued
the City for maintaining a dangerous condition on its property, claiming that
the cause of her fall was a utility box recessed too deeply into the
sidewalk. The trial court gave summary
judgment to the City. We affirm. The alleged defect was trivial in size as a
matter of law, and plaintiff failed to present a triable issue that inadequate
lighting was an aggravating circumstance that created a substantial risk of
due care.
FACTS
On July 3,
2009, at around 10:35 p.m., plaintiff Anne Moore tripped and fell on a public
sidewalk in front of a restaurant at 252 North Beverly Drive (the Site) in
Beverly Hills (the City). Plaintiff had
taken no drugs or alcohol and was strolling slowly with her daughter Rebecca
Moore (Rebecca). The weather was dry and
the sidewalk was free of debris, obstructions and pedestrians. Plaintiff was wearing recently purchased
three-inch-high wedge sandals, which she had worn only once before. She suffered multiple fractures in her ankle
and has pain and impaired mobility as a result of the fall.
A
streetlight electric box with a vault cover (the Box) lies in the sidewalk at
the Site. The Box is 34-3/4 inches long
and 21-3/4 inches wide. Plaintiff
contends that she tripped at the southeast corner of the Box. She landed on the sidewalk southeast of the
Box. There is a scuff mark on the
leather upper of her left shoe directly underneath where her left toes rest,
but no mark on the rubber sole.
Plaintiff made two steps on top of the Box before she fell. She testified that “it happened so quickly, I
don’t have any recollection of what happened.â€
She was unable to specify whether her foot “hit up against somethingâ€
that caused her to trip. Rather, “it
felt like the thing jarred, and then down I went.â€
City police
officer Daniel Tanner arrived at the scene of plaintiff’s fall after she was
taken to a hospital. He took photographs
of the Site, then went to the hospital to show the photographs to
plaintiff. Plaintiff confirmed that
Officer Tanner “had correctly taken photographs of the area of her trip and
fall incident.†One of the photographs
depicts a ruler in the southeast corner of the Box where plaintiff believes she
fell. The ruler appears to show a height
differential of less than one-half inch.
Rebecca
examined a photograph of the Site; she testified that the Site was “only a
little brighter than that†depicted in the photograph. The Box is clearly visible in the photograph. Rebecca did not know which part of the Box
her mother fell on, but indicated that she landed next to the planter at the
restaurant door. Plaintiff described the
Site as “very dark.†She does not recall
whether there were streetlights.
name="_ftnref1" title="">[1]
The Box was
installed in 2004, when the sidewalk was replaced during the City’s
refurbishment of its business district.
The work was performed by a contractor.
It is undisputed that the Box was flush with the sidewalk when it was
installed and the work was approved by a City inspector. The parties disputed whether the Box settled
into the pavement since its installation, and, if so, how much.
Owing to
her injury, plaintiff did not return to the Site. Rebecca examined the Site on July 4, 2009. To estimate the depth of the Box, “all I had
was my finger, so I just sort of put that against where I assumed she may have
fallen just because it was raised a little.
So it was probably about up to here on my finger,†referring to the
crease on her finger, about an inch to an inch and one-quarter. On July
14, 2009, plaintiff’s counsel went to the Site and took a
photograph of her hand next to the Box, holding a small spoon with lines drawn
on it. Held up next to a ruler, the
spoon markings indicate a differential of roughly seven-eighths of an inch.
Biomechanical
engineer John Perry inspected the Site in August 2011. He measured the differential between the
sidewalk grade and the top of the Box as one-quarter inch at the south end, and
between one-half and three-quarters inch along the length of the east
side. The Box “rests either at grade or
level slightly below grade.†Perry noted
that there are no scuffing, scraping or impact marks along the sides of
plaintiff’s nearly new wedge sandals.
Joe Tuttle
was project foreman for the company that installed the Box in 2004. The construction contract required that the
street light boxes be adjusted to grade.
Tuttle recalled that the Box was “flush upon completion.†After plaintiff filed suit in September 2010,
Tuttle went to the Site: he declared
that “[u]pon inspection, three out of the four corners of the box remain flush
with the sidewalk. The remaining corner
has a height differential between sidewalk and cover of half an inch
(0.5â€). While I do not know what caused
the half-inch (0.5â€) height differential, while inspecting the site I made note
of significant settlement of the sidewalk in and around the location of the
fall, and found someone, not [the original contractor] had attempted to grind
down the concrete around the location where the lid and sidewalk showed the
half-inch (0.5â€) height differential.â€
The City
maintains a database of repairs to city sidewalks, including electric box
vaults. City Street Superintendent Jeff
Gettler—who is responsible for logging and investigating complaints of
dangerous or unsafe conditions on City sidewalks—reviewed this database and
found no reports, complaints or repairs to the sidewalk at the Site. The City also maintains a database of tort
claims. It is undisputed that there are
no claims or lawsuits alleging a dangerous condition arising from the Box at
the Site, other than plaintiff’s claim.
PROCEDURAL HISTORY
Plaintiff
filed suit against the City on September 14, 2010, asserting a single cause of
action for negligence due to a dangerous condition of public property arising
from the installation of the Box in the sidewalk and inadequate lighting. The City moved for summary judgment. It argued that it had neither actual notice
nor constructive notice of a dangerous condition; further, the alleged defect
is trivial as a matter of law, and
any failure to provide more illumination did not create a dangerous
condition. Plaintiff opposed the motion,
arguing that there are triable issues regarding the depth of the Box relative
to the sidewalk, whether there were “aggravating circumstances,†and whether
the area surrounding the Box was recently altered.
The trial
court granted the City’s motion, finding that:
photographs of the Site “depicted the area as well litâ€; plaintiff
tripped on an electrical vault box that was between one-quarter and
three-quarters of an inch below the sidewalk, which “is trivial as a matter of
lawâ€; no reasonable mind could conclude that the condition of the sidewalk was
dangerous or that the lighting in the area as shown in the photographs was an
aggravating condition; and the City lacked actual or constructive notice of any
defect. The court entered judgment in
favor of the City on December 30, 2011.
This timely appeal ensued.
DISCUSSION
1. Appeal and Review
The judgment is appealable. (Code Civ. Proc., § 437c, subd.
(m)(1).) Summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.†(Id., subd. (c); Intel Corp.
v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
“The purpose of the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their
dispute.†(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Review is de novo.
(Kahn v. East Side Union High
School Dist. (2003) 31 Cal.4th 990, 1003.)
“Summary judgment will be upheld when . . . the evidentiary submissions
conclusively negate a necessary element of plaintiff’s cause of action, or show
that under no hypothesis is there a material issue of fact requiring the process
of a trial . . . .†(
Dist. (2003) 107 Cal.App.4th 1352, 1360.)
2. Overview of Municipal
Liability
A public entity is not liable for injuries, except as
provided by statute. (Gov. Code, § 815;
City of Pasadena (1996) 42 Cal.App.4th 701, 703.) Liability may arise for injury on public
property if (1) it was in a dangerous condition at the time of the injury and
(2) the injury was proximately caused by the dangerous condition, which created
a reasonably foreseeable risk of the kind of injury that was incurred; further,
the dangerous condition must either be created by a public employee, or the
public entity must have had “actual or constructive notice of the dangerous
condition . . . a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.â€
(§ 835.) Constructive notice may
exist when an “obvious†dangerous condition has existed for “a period of timeâ€
so that the public entity should have discovered it. (§ 835.2, subd. (b).)
Public
property is dangerous if it “creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury†when used with due care. (§ 830, subd. (a).) There is no liability “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 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.†(§ 830.2.)
“The fact that action was taken after an injury occurred to protect
against a condition of public property is not evidence that the public property
was in a dangerous condition at the time of the injury.†(§ 830.5, subd. (b).)
3. The Trivial Defect Doctrine
Trip-and-falls on public sidewalks is an oft-litigated
issue. “It is a matter of common
knowledge that it is impossible to maintain a sidewalk in a perfect
condition. Minor defects are bound to
exist. A municipality cannot be expected
to maintain the surface of its sidewalks free from all inequalities and from
every possible obstruction to travel.
Minor defects due to continued use, or action of the elements, or other
cause, will not necessarily make the city liable for injuries caused
thereby. What constitutes a minor defect
is not always a mere question of fact.
If the rule were otherwise the city could be held liable upon a showing
of a trivial defect.†(
9 Cal.2d 163, 165.)
Supreme Court rulings indicate that
sidewalk height differentials of up to one and one-half inches are too
trivial—as a matter of law—to trigger constructive notice that a sidewalk
requires repairs. (See
5 Cal.2d 361, 363, 367 [one and one-half inch offset between sidewalk panels
not actionable]; Whiting v. City of
National City, supra, 9 Cal.2d at pp. 164, 167 [three-quarter inch sidewalk
offset not actionable]; Barrett v. City
of Claremont (1953) 41 Cal.2d 70, 74-75 [one-half inch offset not actionable]. By contrast, deeper holes present a triable
issue of whether there is a conspicuously dangerous condition of public
property. (See Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 136-138
[sidewalk hole “at least 3 inches deep,†eight or nine inches wide and 10 to 11
inches long is not so minor as to create a pure question of law];
806, 811-812 [sidewalk hole two to two and one-half inches deep, two to six
inches wide, and 12 inches long presented a jury issue on the issue of
dangerousness].)
Over the years, this Court has had
occasion to consider sidewalk defects.
In Balmer v. City of Beverly Hills
(1937) 22 Cal.App.2d 529, the plaintiff tripped on a sidewalk in Beverly
Hills, due to a differential between an old sidewalk section that was one inch
lower than a newer sidewalk it adjoined.
The new sidewalk was constructed six or seven years earlier by a private
contractor and accepted by the City. No
one had reported it as a dangerous condition.
(Id. at pp. 529-530.) A one-inch height gap in a sidewalk was a
minor defect and required the entry of judgment in favor of the City, as a
matter of law. (Id. at pp. 531-532.)
In a later
case, this Court held that “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.†(Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.) Ursino was injured in a fall on a private
sidewalk containing a raised edge that was three-quarters inch higher than the
section adjoining it. (
when determining triviality, the court considers not only the size of a
depression, break or nonalignment in a sidewalk, but also “aggravating factorsâ€
instead of rigidly applying a “‘tape measure’ test.†Summary judgment was appropriately granted
because “the defect was in fact trivial,†based on photographs of the
sidewalk. (Id. at p. 397. See also Cadam
v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383 [differential
in walkway of three-fourths to seven-eighths inch is trivial as a matter of
law].)
Though size may be the most relevant
factor, “the court should consider whether the walkway had any broken pieces or
jagged edges and . . . whether there was debris, grease or water concealing the
defect, as well as whether the accident occurred at night in an unlighted area
or some other condition obstructed a pedestrian’s view of the defect.†(Caloroso
v. Hathaway (2004) 122 Cal.App.4th 922, 927. See also Warren
v. City of Los Angeles (1949) 91 Cal.App.2d 678, 680 [large hole containing
water and oil was not a trivial defect].)
“Furthermore, the court should see if there is any evidence that other
persons have been injured on this same defect.â€
(Fielder v. City of Glendale (1977)
71 Cal.App.3d 719, 734.)
4. Condition of the Sidewalk at the Site
There is no
real dispute that the differential between the Box and the sidewalk was about
one inch. According to plaintiff’s
opposition to summary judgment, Rebecca revisited the Site one day after her
mother’s accident “and estimated the uneven pavement to be a height
differential of approximately 1-1/4†deep, and on July 14, 2009, an associate
from Plaintiff’s lawyer’s firm visited the site and measured the gradation at
under 1â€.†The construction foreman who installed the
Box indicated that the height differential measures one-half inch.
There is no credible evidence in
the record that the differential in this case was greater than one inch. Rebecca “estimated†the height at slightly
more than an inch without a lined measuring device such as a ruler or tape
measure. She stated, “I
as the crease in her finger. (Italics
added.) When a case hinges on an exact
measurement, a guesstimate that a tort-producing defect is “probably about†a
certain height merits little consideration, especially when it is based on an
assumption about where plaintiff “may have fallen.†“A party cannot avoid summary judgment based
on mere speculation and conjecture [citation], but instead must produce
admissible evidence raising a triable issue of fact.†(Compton
v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.)
By contrast, a measurement made 10
days after the accident by plaintiff’s attorney with an unsophisticated, lined
measuring device (a wooden ice cream spoon) shows a seven-eighths inch
differential. Plaintiff’s expert Joe
Tuttle measured the differential at one-half inch. Even if the sidewalk was ground down at some
point, actions taken to improve public property are not evidence that the
property was in a dangerous condition at the time of injury. (§ 830.5, subd. (b).)
Officer Tanner’s ruler at the Site
on the night of the accident shows less than a one-inch differential and the
City’s engineer measured a differential ranging from one-quarter to
three-quarters inch. Plaintiff’s
evidence shows that the height differential was one-half inch (Tuttle) to
seven-eighths inch (plaintiff’s attorney), as objectively measured with a
device. The Supreme Court has indicated
that a differential of less than one and one-half inches is not
actionable. (Nicholson v. City of Los Angeles, supra, 5 Cal.2d at p. 367.)
As a result, the alleged defect is “trivial as a matter of law, unless
[plaintiff presents] disputed evidence
that other conditions made the walkway dangerous.†(Caloroso
v. Hathaway, supra, 122
Cal.App.4th at p. 927.)
At the time
of plaintiff’s fall, the weather was dry and the sidewalk was free of debris,
obstructions and pedestrians. Although
plaintiff described the location as “very dark,†Rebecca examined a photograph
of the Site and testified that the Site was “only a little brighter†than what
is shown in the upper-right photo on page 58 of the Clerk’s Transcript. “We have reviewed the pictures of the
sidewalk and agree with the trial court that reasonable minds could not differ
and that the defect was in fact trivial.â€
(Ursino v. Big Boy Restaurants,
supra, 192 Cal.App.3d at p.
397.) The photo on page 58 shows that
the Box was visible from a distance and does not pose a substantial risk of
injury to anyone who was using due care and watching where she was stepping.
5. Conclusion
The City
carried its burden of proving, first, that the height differential at the Site
was not enough to trigger constructive notice that its sidewalk required
repairs and, second, that there was no actual notice of a defect because the
City was not notified that other persons had fallen and were injured by this
same defect. The minor depth of the Box,
alone, is not actionable under Supreme Court case law. Plaintiff did not carry her burden of showing
a triable issue as to whether aggravating circumstances at the Site made the
defect more dangerous than its size alone would suggest. The City is not an insurer against an injury
arising from a trivial defect. (
Summary judgment was properly granted for the City.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ,
J. FERNS,
J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">[1] Plaintiff
cites pages 57 to 59 of her deposition as evidence that there was construction
at the Site that darkened the Box. The
cited deposition pages do not mention construction at the Site, and photos of
the Site taken by Officer Tanner on the night of the accident show no signs of
construction. During argument before the
trial court, the City volunteered that there was construction “across the
street,†which the court correctly observed was not evidence in the record.
name="_ftn2" title="">[2] The
trial court sustained objections to speculative statements Tuttle made about
water-blasting at the Site.
