In Heskel v. City of San Diego, published June 23, 2014, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in favor of the city defendant in a trip-and-fall case. While walking on a city sidewalk at night, the plaintiff tripped over the protruding base of a hollow metal post cemented into the sidewalk. Photos submitted by the plaintiff were poor, but appeared to show the base protruded only a few inches. The city indisputably lacked actual notice of the condition. The plaintiff argued that the city was liable under Government Code section 835 for a dangerous condition of public property because it had constructive notice of the condition. The trial court granted the city summary judgment, ruling that the city lacked constructive notice. The appellate court agreed.
Constructive notice requires that a condition both be present for long enough that the entity should have noticed it, and that the condition was obvious. The city produced evidence that the condition was not obvious. It submitted evidence from several city departments establishing that there had been no complaints of the condition or of accidents caused by or causing it. It also produced evidence that workers had been in the location in the year before the accident, and had not noticed the condition. This evidence shifted the burden on summary judgment to the plaintiff to produce evidence that it was obvious. Plaintiff's evidence of one previous accident, of his son witnessing his accident, and of the size of the condition failed to raise a triable issue of fact on whether the condition was obvious. A small condition is not inherently obvious.
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