Government Liability Update

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents.  On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position.  There was no indication of any problem.  Later that night, after discharge, the plaintiff could not feel any fetal movement.  The next day, she returned to the hospital.  Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise.  They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise.  Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind.  The plaintiff denied discussing an autopsy that day.  That day, the doctors induced labor.  The plaintiff delivered a stillborn baby on November 7, 2016.  A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died.  At some point after the delivery, the plaintiff ordered an autopsy.  A doctor met with the mother on July 10, 2017 to discuss the autopsy results.  The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said.  The plaintiff states that during this meeting, she first suspected medical negligence caused the death.  She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018.  The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.

The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact.  The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing.  Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016.  The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy.  The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day.  The records state that the plaintiff was interested in an autopsy but was undecided.  The plaintiff herself denied discussing an autopsy that day.  Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing.  Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7.  A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point.  On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.

Police Agency's Vehicle Pursuit Policy That Does Not Meet the POST Minimum Annual Training Hours Requirement Cannot Immunize Agency

In Flores v. City of San Diego, published September 15, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant city.  A motorcycle operator died while being pursued by police.  The operator's survivors sued the city for wrongful death.  The city moved for summary judgment based on the immunity under Vehicle Code section 17004.7.  Section 17004.7 immunizes public agencies from liability under Vehicle Code section 17001 if the agencies satisfy the statutory requirements for promulgating, adopting, and training officers on a vehicular pursuit policy.  The statute requires "regular and periodic training," which the statute defines as complying, at a minimum, with the training guidelines established pursuant to Penal Code section 13519.8.  Penal Code section 13519.8, in turn, authorizes the Peace Officers Standards and Training (POST) Commission to set standards pertaining to state-wide training of officers in the handling of high-speed vehicle pursuits.  The defendant department used a 25 minute, 50 second video to train officers on its pursuit policy.  POST Regulation 1081 require a minimum of one hour training annually on high-speed vehicle pursuit training.  The plaintiffs contended that because the city's pursuit policy training did not meet the one-hour minimum annual training regulation, the city was not entitled to immunity under section 17004.7.  The trial court granted summary judgment.

The appellate court concluded that the city had to meet the POST regulation's requirement of at least one hour training on the pursuit policy annually.  The court rejected the city's argument that the regulation applied only to entry-level training.  It further rejected the argument that the regulation does not apply to discretionary training such as vehicle pursuit policy training; if an agency wishes to avail itself of the section 17004.7 immunity, the training and adherence to the POST regulation become mandatory.  The court further rejected the argument that POST was not statutorily authorized to adopt minimum time standards for the training.  Because the City failed to show that its officers received a minimum of one hour training on the policy annually, it was not entitled to summary judgment.

Officer's Exchange of Shots with Hostage Taker Did Not Render Officer Liable for the Criminal's Later Murder of the Hostages

In Gorlick v. State of California, published September 8, 2022, the First District Court of Appeal, Division 3 affirmed dismissal of a defendant county, county sheriff’s office, and deputy sheriff after demurrer was sustained without leave to amend.  A disgruntled former resident of a veteran’s home entered the home, armed, and took hostages.  The defendant deputy was dispatched to the hostage situation.  He opened a metal door in the home, and saw the hostage taker holding a rifle.  The deputy closed the door, and fired at the hostage taker through the door.  The hostage taker fired back.  After exchanging several shots, the deputy held back for several minutes until backup arrived.  Hours later, an FBI SWAT team opened the door and found the hostage taker and hostages dead.  It was undisputed that none of the deputy’s shots hit the hostages or the hostage taker; the hostage taker killed the hostages and himself, allegedly within seconds after exchanging gunfire with the deputy.  The plaintiffs alleged the county defendants were liable for the wrongful death of the victims because they failed to exercise reasonable care in preparing for and responding to the shooting incident.  The trial court concluded that the county defendants did not owe a duty of care to the victims.

The appellate court agreed.  Peace officers owe a duty of care to act reasonably when using deadly force.  But the complaint failed to allege facts showing that this duty encompassed an obligation to prevent the hostage taker from shooting his hostages.  Under California law, a peace officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.  A corollary is that the officers have a duty in tort to act reasonably when using deadly force against a suspect.  An officer’s lack of due care when employing deadly force may give rise to liability for injuries incurred by third parties in the deadly force incident, when the officer injures those persons.  But no one suffered physical injury during the exchange of gunfire between the officer and the hostage taker.  Generally, there is no duty to protect others from the conduct of third parties.  By using deadly force, the deputy did not assume a tort duty of care to the hostages to prevent the hostage taker from killing them.  Case law differentiates injury caused by an officer’s allegedly negligent use of deadly force (which is actionable) from failure to prevent a third party’s use of force (which is generally not actionable).  There are exceptions from the rule that a person owes no duty to protect others from perils the defendant did not create.  But none of them applied here.  The plaintiffs did not allege facts showing that the deputy placed the hostages in danger.  By discharging his duty to protect the public as a whole from the hostage taker’s criminal actions, the deputy did not assume a duty of care to the hostages distinct from or greater than his duty to the public.  The complaint did not plead facts linking the deputy’s acts to the hostages’ death, and therefore did not establish that the deputy’s acts increased the risk the hostages already faced.  To state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a direct connection between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct.  Neither the speculative conclusion that the gunfire exchange prompted the hostage taker to shoot the hostages, nor the allegation that the deputy should have entered the room and killed the hostage taker after making his presence known, showed the required connection.  An officer does not increase a risk of harm by failing to stop an individual from acting dangerously.  The court also rejected the argument that the deputy or county entered into a special relationship with the victims or the killer.  The deputy’s mere appearance and attempt to stop the crime did not create a special relationship with the victims.  The plaintiffs did not allege that the hostages detrimentally relied on anything the deputy did or said.  An “interagency agreement” between the sheriff’s department and the entity running the home, requiring the department to respond to all calls for service at the home, did not create a contractual duty for the department to protect the decedents from the killer.  While the department had verbal interactions with the home’s staff about security issues at the home, this did not create a special relationship analogous to that in cases where police secure a person’s cooperation in exchange for promises of protection or assurances that a threat does not exist.

Prison Guard Entitled to Qualified Immunity for Shooting Inmate in Fight with Less-Lethal Round, and Nurse Entitled to Qualified Immunity for Subsequent Examination of Prisoner

In Simmons v. Arnett, published August 31, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for a prison guard and a prison nurse in a 42 U.S.C. section 1983 lawsuit alleging violation of the 8th Amendment.  The plaintiff prisoner was attacked by another inmate.  The defendant guard was the only guard in the command center.  He could not leave the command center.  He had both a semi-automatic rifle loaded with live rounds, and a less-lethal 40 mm. weapon that shot sponge-tipped plastic rounds.  He used the less-lethal weapon to shoot at the plaintiff inmate to break up the fight.  He shot the plaintiff in the leg, breaking the leg, and then in the thigh and buttocks.   Prison staff immediately took the plaintiff to the prison's medical room.  The defendant nurse asked the plaintiff how he was injured.  He stated he slipped in water.  She wrote that down.  He then said he had been shot in the backside.  She wrote that he had lower leg pain.  WIthin minutes, she had him transferred to the prison's emergency room, where his leg and later his thigh and buttocks were treated.  The notes she made were not sent with him.  He alleged that the guard used excessive force and that the nurse was deliberately indifferent in her medical care.

The appellate panel majority ruled that neither defendant violated the plaintiff's 8th Amendment rights.  A use of force violates the 8th Amendment if it is not a good faith effort to maintain or enforce discipline, and the defendant instead acts maliciously and sadistically for the purpose of causing harm.  Viewing the facts in the light most favorable to the plaintiff (including the fact that the plaintiff was not fighting back), the guard acted reasonably in acting to stop the fight without leaving the command center, and in using the least use of force available to him.  Further, the guard was entitled to qualified immunity, because his conduct did not violate clearly-established law.  Case law holding that use of deadly force on an inmate bystander to a fight violated the 8th Amendment did not clearly establish the use of force was excessive, because the case did not involve a guard who could not leave his post and who used less-lethal force.  The nurse was entitled to summary judgment because the facts did not show any deliberate indifference on her part in failing to make a complete examination, and in writing the plaintiff's own description of what caused his injury in the notes (which were not used in the inmate's treatment).  Instead, the facts showed that the nurse acted properly.

A dissenting judge agreed the nurse was entitled to summary judgment, but opined that qualified immunity should not be found at the summary judgment stage.  If the facts were resolved in the inmates favor, the judge wrote, the use of force on an inmate who was not fighting violated clearly established law.

Alter-Ego Theory of Liability May Be Applied to Public Entities

In Cam-Carson, LLC v. Carson Reclamation Authority, published August 23, 2022, the Second District Court of Appeal, Division 8 reversed dismissal of a lawsuit after demurrer.  The plaintiff, a commercial real estate developer, contracted with the defendant city and the defendant reclamation authority (a joint powers authority created to oversee environmental remediation on the subject site) to develop a 40-acer site.  The plaintiff alleged that the city and authority engaged in gross mismanagement and malfeasance that disrupted the project, causing damages to the plaintiff of over $80 million.  Under the agreement between the plaintiff and the authority, the authority was responsible for constructing remedial systems, build offsite improvements.  The authority allegedly mismanaged the project.  The plaintiff alleges causes of action for breach of contract against the authority, and against the city and a successor interest to a redevelopment agency as alter egos of the authority; and breach of the implied covenant of good faith and fair dealing against the city and authority, and the city defendants as alter egos.  The trial court sustained the city's and successor agency's demurrer to the complaint, on the ground that the city was not a party to the contract, and there were insufficient allegations of alter ego liability.

The appellate court ruled there were sufficient allegations of alter ego liability in the complaint.  The court rejected the argument that alter ego liability, as a matter of law, cannot apply to public entities.  The city formed the authority to pursue remediation of the side, and one of the goals was to protect the city from any liability that would arise to the landowner.  Under the alter ego theory, if government entities are operated with integrated resources in pursuit of a single business purpose, and one of them so dominated the finances, policies, and practices of the other that the latter had no separate existence of its own, but was merely a conduit through which the former conducted its business, then alter ego liability may exist if an inequitable result would otherwise follow.  The complaint alleged facts that, if proved, would allow a court to conclude that the elements of alter ego liability were met here.  The demurrer to the bad faith cause of action was error not only because it was based on the trial court's rejection of the alter ego theory, but because it did not consider the allegations that the development agreement, to which the city was a party, was breached.

Police Properly Demanded Drivers Licenses at Checkpoint and Properly arrested Driver Who Refused to Show One

In Demarest v. City of Vallejo, published August 16, 2022, the 9th Circuit affirmed summary judgment for the defendant city and defendant police officer in a 42 U.S.C. section 1983 case.  The plaintiff was suffering from a staph infection on his back.  He encountered a DUI and driver's license checkpoint.  Under the checkpoint plan, all vehicles were stopped unless backup exceeded five minutes.  Officers were to screen drivers for DUI, verify they had a license, and provide an educational handout.  Although drivers' licenses  were to be checked, the checkpoint's purpose was to remove intoxicated drivers from the road and deter intoxicated driving, not to remove unlicensed drivers.  The plaintiff refused to show his driver's license at the checkpoint.  The defendant officer opened the door of his car, grabbed his left wrist, removed him from the vehicle, handcuffed him, and told him he was under arrest.  The arrest process, which took one to two seconds, exacerbated the plaintiff's back pain.  When he was booked, a utility knife was discovered hanging around the plaintiff's neck.  He was charged with resisting arrest and carrying a concealed dirk or dagger.  He participated in a diversion program and the charges were dismissed.  He then sued the officer for violating his 4th Amendment rights by demanding to see his license and refusing to let him proceed; detaining him without reasonable suspicion; arresting him without probable cause; and using excessive force.  He sued the city for municipal liability for an alleged official policy of conducting driver's license checks at DUI checkpoints; and for failure to train.  The district court ruled that neither the officer nor the city violated the 4th Amendment.

The court of appeals agreed.  A municipality may set up a checkpoint to stop cars without reasonable suspicion of committing a crime, if it passes a two-part test.  First, the court must determine whether the checkpoint is per se invalid because its primary purpose is to advance the general interest in crime control.  If not, the court determines the checkpoint's reasonableness (and therefore constitutionality) based on the individual circumstances.  Here, the checkpoint satisfied the first step.  The primary purpose of the checkpoint was the proper one of reducing the danger of drunk driving.  Although removing unlicensed drivers from the road was not a purpose of the checkpoint, that did not detract from the checkpoint's proper purpose.  Further, if removing unlicensed drivers from the road was a purpose, that highway safety purpose would have been proper.  On the second step, stopping the plaintiff's car based on the sobriety checkpoint was proper under the 4th Amendment.   The court rejected the argument that the purpose of having a sobriety checkpoint rendered checking licenses improper.  The subjective intent behind the stop is not relevant to the second step.  The systematic addition of driver's licenses checks to the DUI checkpoint was objectively reasonable.  The check only minimally interfered with liberty of the sort the 4th Amendment seeks to protect.  It was not an investigation of a crime; the contribution to the length of the stop was minimal; and the programmatic guidelines of the stop minimized discretion of officers at the scene.  The plaintiff's detention and arrest did not violate the 4th Amendment, because the officer had probable cause the plaintiff violated Vehicle Code section 12951 by refusing to show his license.  Finally, the excessive force claim fails, because the use of force incidental to the arrest was reasonable, and the plaintiff failed to show evidence the officer using the force was aware of the plaintiff's back injury when the force was used.

College Professor Did Not Violate Clearly-Established Establishment Clause or Free Exercise Rights by Teaching Course Allegedly Critical of a Religion

In Sabra v. Maricopa County Community College District, published August 10, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit.  The defendant professor at the defendant community college district taught a course on world politics.  One module of that course was on Islamic terrorism.  The plaintiff student took the course. The student alleged that the course included material that denigrated Islam and was misleading.  The plaintiff was a Muslim.  The course included a multiple-choice quiz that allegedly required the student to choose answers that attacked the student's faith or else be graded downward.  An organization that advocates on behalf of American Muslims joined the student as a plaintiff.  The plaintiffs alleged that the Islamic Terrorism module violated the Establishment Clause of the 1st Amendment because its primary message is the disapproval of Islam, allegedly presenting a biased and one-sided portrayal of Islam as though it were presenting fact.  The lawsuit also alleged that the quiz violated the student's rights under the Free Exercise Clause of the 1st Amendment by allegedly requiring the student to disavow his religion by selecting the correct answer choice or be penalized by answering in accordance with his beliefs.  The lawsuit named the professor in his personal and official capacities and named the district under a theory of municipal liability.  The district court concluded that the organizational plaintiff lacked standing under a theory of organizational injury.  The court further determined that the complaint did not state violations of the student's 1st Amendment rights, and that the professor was entitled to qualified immunity.

The appellate court ruled that the organizational client had established standing, by alleging that the district's and professors' acts required it to divert its resources to create a campaign correcting the allegedly Islamophobic information in the course materials.  The panel majority concluded that the plaintiffs had abandoned their municipal liability claim on appeal, because the district raised the municipal liability argument in its answering brief and the plaintiffs failed to respond to it in their appellate reply brief.  Further, on the merits, the majority rejected the argument that because the professor taught the course for 24 years, the district had a longstanding practice and custom of teaching that disapproved Islam.  The complaint failed to allege facts that the challenged material was taught for a long period.  The allegation that the professor was a policymaker for the district because he was the chair of a department failed; under law, the district's board was the policymaking  body.  The complaint failed to plausibly allege a ratification theory of liability, because it did not plausibly allege that a policymaker had actual or constructive knowledge of the offending material and sanctioned its use in the classroom.  Because the plaintiffs abandoned the municipal liability claim on appeal, they were not entitled to a remand to allow them to amend their complaint.  Addressing the claims against the professor, the panel majority agreed with the district court that the professor was entitled to qualified immunity.  No case law established beyond debate that teaching material that allegedly denigrated a religion, or administering a quiz that required a student to make choices contrary to the student's beliefs, violated the Establishment or Free Exercise clauses.  Given that there were powerful arguments on both sides, the violations were not so "obvious" as to be clearly established without precedent.  The panel did not address the merits of the alleged violations.

A judge dissented, opining that the alleged conduct in giving the quiz violated the student's clearly-established Free Exercise rights.  The judge also disagreed with the appellate abandonment holding.  Another judge concurred with the majority, writing separately to respond to the dissenting judge's opinion regarding qualified immunity.  The concurring judge also opined that while 9th Circuit precedent compelled the decision on organizational standing, the 9th Circuit precedent was incorrect.

Social Media Posts of Police Officer Protected by First Amendment Despite Objectionable Content

In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983.  The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department.  While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam.  Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts.  This generated public criticism of the department and negative media attention.  The department investigated the posts.  The officer asserted that he posted the items to drive discussion about issues in the news at the time.  The investigation concluded that the officer had violated the department's social media policy.  Before the department decided what discipline to impose, the officer and others filed the lawsuit.  The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad.  They sought damages and injunctive relief.  The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge.  It then granted summary judgment on the facial vagueness claim.

The 9th Circuit reversed the dismissal of the retaliation claim.  The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies.  The district court determined that the officer had not spoken on a matter of public concern.  That is an issue of law subject to de novo review.  The court analyzes the content, form, and context in which the statements are made.  The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department.  Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile.  The intended audience was not limited to fellow employees, and the posts were open to the public.  While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern.  The court remanded the claim to the district court for further development of the record.  The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference.  The department may permissibly consider the special status officers occupy in the community  when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to
effectively carry out its mission. 

Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court.  Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations.  The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage.  The department does not have a legitimate interest in prohibiting speech merely on those grounds.  The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.

 

The Unruh Act Does Not Apply to School Districts or Other Public Entities

In Brennon B. v. Superior Court (West Contra Costa Unified School Dist.), published August 4, 2022, the California Supreme Court affirmed a demurrer sustained to a cause of action against a school district for violation of the Unruh Civil Rights Act.  The plaintiff, a disabled student, alleged that the school district violated the Unruh Act by failing to protect him against sexual assault.  The trial court sustained the demurrer on the ground that the district was not a "business establishment" within the meaning of the act.  The plaintiff petitioned the lower court of appeal for writ relief.  The appellate court agreed with the trial court.

The California Supreme Court agreed as well. The Unruh Civil Rights Act, Civil Code section 51, subdivision (b) bars discrimination "in all business establishments of every kind whatsoever." The court examined the language of the Unruh Act, its legislative history, and the history of cases interpreting it, and concluded that the phrase "all business establishments of every kind whatsoever" is limited to entities acting as private business establishments.  In particular, earlier versions of the bill that became the Unruh Act stated that it applied to schools, but reflect a progressive narrowing of the legislation's applicability to "schools' before completely eliminating the reference to schools, while leaving the language concerning "business establishments" untouched.  The district was therefore not a "business establishment" when it provided educational services for the plaintiff.  The court also rejected an alternative argument that subdivision (f) of Civil Code section 51, which makes a violation of the federal Americans with Disabilities Act of 1990 actionable under the Unruh Act, expanded the Unruh Act's application to school districts.  Analyzing the language and legislative history, the court concluded that subdivision (f) means that any violation of the ADA by a business establishment is also a violation of the Unruh Act.  The court further rejected an argument that the language of Education Code section 201, subdivision (g), as amended in 1998, stating a legislative intent that the chapter of the Education Code be interpreted as consistent with the Unruh Civil Rights Act, incorporated the Unruh Act's remedies into the Education Code.  Treating the amendment as bringing public school districts within the ambit of the Unruh Act would have exceeded the stated intention behind the 1998 amendment and been in tension with the Legislature's professed goal of mitigating litigation costs for schools.

City Policy of Grinding Down Larger Displacements Does Not Prevent a 3/4" Sidewalk Displacement from Being Trivial as a Matter of Law

In Nunez v. City of Redondo Beach, partially published July 27, 2022, the Second District Court of Appeal, Division 3 affirmed summary judgment granted for the defendant city in a dangerous condition of public property lawsuit.  The plaintiff, a part-time fitness instructor, wearing running shoes, tripped one morning on a raised sidewalk slab and fell.  The height of the displacement ranged from zero to 5/8”.  The plaintiff was looking straight ahead when she fell.  She sued the city.  The city moved for summary judgment on the ground that the sidewalk panel displacement was a trivial defect.  The plaintiff argued the offset constituted a dangerous condition under the city’s policy that offsets half of an inch or greater were tripping hazards needing repair, and that aggravating circumstances existed here—the existence of shadows, with the continuity of the walking surface color, shrouded the defect, and the plaintiff was unfamiliar with the area—that substantially increased the risk that the plaintiff would fall.  The trial court concluded that the displacement was a trivial defect.

The appellate court agreed.  Under the trivial defect doctrine, the plaintiff must plead and prove, as an element of duty, that the defect is not minor, trivial, or insignificant, since a property owner’s duty of care does not include a duty to repair such defects.  A court applies a two-step analysis to determine whether a defect is trivial as a matter of law.  First, the court considers the size and nature of the defect.  If that analysis indicates the defect is trivial, the court considers whether any additional factors bear on whether the defect presented a substantial risk of injury.    Here, the city’s policy of grinding down defects of a half-inch or more did not create a triable issue on triviality.  While defects of a half-inch may pose a tripping hazard to pedestrians, the city owes only a duty to protect pedestrians from displacements that pose a substantial risk to pedestrians using due care.

In the unpublished portion of the case, the court held that, here, the size of the displacement was just under three-quarters of an inch.  Such sidewalk displacements are trivial as a matter of law absent aggravating factors.  The city contended there were no aggravating factors:  it was a sunny, dry morning; the offset between the two adjoining slabs had no jagged edges, debris did not cover the defect, the sidewalk was free of cracks, holes, loose concrete, liquid, or other defects, and the city had no record of any earlier complaints about accidents involving the offset.  The court rejected the plaintiff’s argument that the lack of color differentiation between slabs was an aggravating factor; that factor would apply to most sidewalks, and would render the trivial defect doctrine practically inapplicable to sidewalks. Further, since the plaintiff was looking straight ahead, there was no evidence that the color differentiation caused the accident.  Nor was there evidence the plaintiff’s unfamiliarity with the area contributed to the fall.  The mere fact that the plaintiff tripped despite being athletic did not raise a factual issue on triviality.  Any size defect can cause a person to trip. The court also rejected the argument that the fact the defect was in shadow at certain times of the day, in itself, was an aggravating factor. As the sun moves during the day, shadows are ubiquitous.  Further, from the photos of the defect, a fact finder could not reasonably find that the presence of shadows would decrease the visibility of the defect.