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In the unpublished portion of the case, the court held that, here, the size of the displacement was just under three-quarters of an inch.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.