Government Liability Update

Fifth District Court of Appeal Disagrees with Other Appellate Courts’ Approach to Determining Whether Sidewalk Defect Is Trivial

 

In Stack v. City of Lemore, published May 3, 2023, the Fifth District Court of Appeal affirmed a judgment against the defendant city entered after jury trial.  The plaintiff was jogging his usual route around his neighborhood when he tripped over a raised slab of sidewalk.  The raised slab created two defects:  a first defect where the panel is elevated about 1-3/4” above the next panel; and a second defect caused by the lifted panel sloping slightly downward and creating a second elevated ridge where it meets with the following downward-sloping raised panel.  A layer of pine needles appears all along the base of the first defect, except at its outermost edges.  The plaintiff was familiar with both defects; he had jogged over the stretch of sidewalk some 300 times in the previous two years.  During this jog, the plaintiff saw the first defect as he approached.  But as he was striding over it, he was focused on the second defect ahead of him.  He caught his toe on the lip of the first defect and stumbled.  He had never fallen in the area before.  The plaintiff’s human factors expert opined that the second defect enhanced the fall risk for joggers, whose brains would be focused on the second defect while they were clearing the first.  The expert acknowledged that the first defect was clearly visible from 25 feet away.  The expert opined that the layer of pine needs at the base of the first defect also increased the fall risk, because they made it difficult to tell how high the first defect was by obscuring portions of the elevation’s face, and created a color issue making it more difficult to judge the contrast of the where the defect starts and ends.  The plaintiff sued the city for maintaining a dangerous condition of public property under Government Code section 835.  The city did not move for summary judgment.  The jury found the property in a dangerous condition at the time of the accident.  The city appealed.  For the first time on appeal, it raised the argument that the defect was not a dangerous condition because it was trivial under Government Code section 830.2.

 

The appellate court upheld the jury’s verdict.  It rejected the city’s argument that the defect was trivial as a matter of law.  The court rejected the two-step analysis previous appellate decisions have applied to determine whether a sidewalk defect is trivial as a matter of law.  Instead, the court applied “a holistic, multi-factor analysis.”  The court began with the size of the defect.  It rejected “dictum” in other cases suggesting that defects up to 1-1/2” are trivial.  It found more accurate the statement that when the size of the depression is more than 1”, courts are reluctant to find the defect not trivial as a matter of law.  The court found no firmly fixed arbitrary size below which the defect is trivial and above which danger becomes an issue of fact.  Instead, the court should not rely solely on the size of the defect.  The court further opined that a defect cannot be deemed trivial as a matter of law based only on size.  The minimum 1-3/4” height differential of the first defect weighed heavily against finding the sidewalk condition trivial as a matter of law.  Therefore, there must be a strong showing of other circumstances that made the defect not dangerous despite its height.  A fact finder could find the danger was aggravated by the presence of the two defects.  A jury could credit the human factors expert’s opinion that the two created a danger for joggers.  While the expert’s opinion that the defects increased the danger was not dispositive, it was relevant.  Further, reasonable minds could differ on whether the roughness of the lip of the first defect increased the risk of catching a pedestrian’s toe.  Although the overall obstruction was clearly visible, reasonable minds could differ on whether the full depth of the first defect and its danger would have been apparent to an approaching jogger in light of the dirt and pine needles at the base.  This also increased the danger.  The lack of evidence of prior accidents at this section, combined with plaintiff’s lack of prior accidents there, is relevant to the existence of a dangerous condition.  But the appellate court declined to follow other appellate courts that found the plaintiff’s familiarity with the property relevant to whether the defect was trivial.  On balance, the factors did not combine to create a risk so trivial, minor, or insignificant that the sidewalk condition must be held not dangerous as a matter of law.

Claim for Damages Stating Plaintiff Tripped on Uplifted Sidewalk Did Not Support Action for Tripping on Empty Tree Well

In Hernandez v. City of Stockton, published April 28, 2023, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell on a city street.  He presented a claim to the city alleging that he sustained injuries when he tripped and fell due to a "dangerous condition" on the city-owned "sidewalk surface," which he identified as an "uplifted sidewalk."  A liability claims investigator for the city inspected the sidewalk near the address given in the claim.  He was unable to locate any uplifted sidewalk.  The city sent the plaintiff's counsel a notice of insufficiency, stating that the city was unable to determine the loss location.  The notice requested photos, a map, or diagram showing the exact loss location, and advised the plaintiff he could submit an amended claim within six months of the incident.  The plaintiff did not respond to the notice.  After his claim was rejected, the plaintiff filed suit.  In his complaint, he alleged that the "sidewalk surface" had a "dangerous condition" that created an unspecified hazard.  During a deposition, the plaintiff testified he tripped and fell when he stepped into a tree well that had no tree in it.  In his deposition, he agreed that his fall was not caused by an "uplifted sidewalk."  The city moved for summary judgment, on the ground that the plaintiff was suing on a factual basis never reflected in his claim.  The plaintiff responded that his claim's statement that he tripped and fell due to "an uneven sidewalk surface" was the "factual equivalent" of what his claim stated, and that his complaint's allegations did not alter the theory of the nature of the dangerous condition.  The trial court granted the city's motion, ruling the claim and lawsuit were not based on the same factual basis.

The appellate court agreed.  A complaint is subject to dismissal if it alleges a factual basis for recovery that is not "fairly reflected" in the government claim.  The plaintiff's claim specifically and solely identified an "uplifted sidewalk" as the dangerous condition that caused his injuries.  His action premised liability on a different dangerous condition--a hole crated by an empty tree well.  Such a variance subverts the purpose of the Government Claims Act:  giving the public entity an opportunity to investigate and evaluate its potential liability and, where appropriate, avoid litigation by settling meritorious claims.  The complaint did not merely elaborate upon or provide further detail to a government claim based on the same fundamental facts; it premised liability on an entirely different factual basis.  The court rejected plaintiff's contention of substantial compliance.  Further, the fact that a city employee testified he knew the claim was based on plaintiff tripping on an empty tree well did not satisfy the claim requirement.  The claim presentation requirement must be satisfied even if the public entity actually knows the circumstances surrounding the claim.  Further, the employee only inspected the property after the claim was rejected, and testified only after the plaintiff disclosed in deposition that he tripped over an empty tree well.

Design Immunity Does Not Apply to Failure to Warn of Dangerous Condition of Which Entity Has Notice

In Tansavatdi v. City of Rancho Palos Verdes, published April 27, 2023, the California Supreme Court affirmed a lower appellate court decision that partially reversed an order granting the defendant city summary judgment.  While riding a bicycle on a city street, the plaintiff's decedent collided with a turning truck.  The plaintiff contended the street was a dangerous condition of public property because the portion of the street where the accident occurred lacked a bicycle lane.  She further contended that the city failed to warn of a concealed trap created by the absence of the bicycle lane.  The city obtained summary judgment based on design immunity under Government Code section 830.6.  The order granting summary judgment did not specifically address the plaintiff's failure to warn theory of liability.  The lower appellate court affirmed the grant of design immunity.  But it reversed summary judgment, because the trial court had not addressed the failure to warn cause of action.  The appellate court held that under Cameron v. State of California (1972) 7 Cal.3d 318 a public entity may be held liable for failure to warn of a a concealed dangerous condition even if the dangerous condition was caused by design immunity.  The Cameron case based this holding on Government Code section 830.8, which establishes immunity from liability for failure to place warning signs, but exempts warning signs necessary to warn of a dangerous condition that would not be reasonably apparent to those using the roadway with due care.  The lower court declined to follow Weinstein v. Cal. Dept. of Transp. (2006) 139 Cal.App.4th 52, which held that design immunity applies to failure to warn of a danger created by a design that is covered by the immunity.  The California Supreme Court granted the city's petition for review.

The Supreme Court agreed that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity form liability for failure to warn of the same dangerous condition.  Design immunity under Government Code section 830.6 immunizes liability for having created a dangerous traffic condition under Government Code section 835(a) (liability for a public employee negligently creating a dangerous condition), but does not necessarily immunize liability for failing to warn of a known dangerous traffic condition under Government Code section 835(b) (failing to warn or protect against a dangerous condition of which the entity had actual or constructive notice).  In addition to loss of design immunity due to changed circumstances, a public entity can be held liable for failure to warn of a dangerous condition of which it had notice, even if creation of the condition is covered by design immunity.  There are restrictions on that theory of liability.  First, the plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.  Second, failure to warn claims may be subject to a separate, more limited form of statutory immunity:  the signage immunity set forth in Government Code section 830.8.  Because of the "concealed trap" exception to section 830.8, the plaintiff must overcome signage immunity by establishing the accident-causing condition was a concealed trap.  Third, the plaintiff must prove that the absence of a warning was an independent, separate  concurring cause of the the accident, by establishing that the absence of a warning sign was a substantial factor in causing the accident.  The court declined to address whether a public entity can be held liable if the public entity is able to show that the presence or absence of warning signs was part of the approved design.  The court disapproved Weinstein and another case with a similar holding, Compton v. City of Santee (1993) 12 Cal.App.4th 591.  Further, while the court noted that a discussion in Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63 applying design immunity to liability under Government Code section 835(b) "is arguably in tension with some of our discussion in Cameron," it concluded that application of design immunity to section 835(b) was not the legal issue presented in Cornette, and was not intended to modify or overrule Cameron.

(Pollak, Vida & Barer, along with other counsel, represents the defendant city in this case.)

Mother Cannot Sue City for Bystander Emotional Distress based on Dangerous Condition Liability Absent Contemporaneous Awareness Property Condition Caused Accident

In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer.  The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection.  The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse.  The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures.  The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries.  After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.

The court majority agreed that the trial court properly sustained the demurrer.  Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury.  Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident.  But the appellate court reversed the trial court's denial of leave to amend.  On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city.  The court ruled that she should be given an opportunity to allege such facts.

One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained. 

City Is Not Liable for Plaintiff Tripping over Negligently-Parked Dockless Scooter

In Hacala v. Bird Rides, Inc., published April 10, 2023, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a dismissal after demurrer.  Plaintiff, walking on a city sidewalk just after twilight, tripped on the back wheel of a Bird scooter sticking out from behind a trash can, and fell.  She and family members sued the city and Bird.  The complaint alleged that the city was vicariously liable under the Government Claims Act for its employees' alleged negligent failure to monitor Bird's compliance with its permit with the city (under which Bird agreed to restrictions on scooter parking, to remove improperly-parked scooters within two hours, and to educate its agents and customers to follow the city's parking standards) and to use the city's powers to impose fees on Bird.  The trial court sustained the defendants' demurrer without leave to amend.  The court concluded that a third-party user had negligently parked the scooter, and the defendants had no special relationship with any party that required them to protect the plaintiffs from the third party's alleged misconduct.

The appellate court affirmed the demurrer as to the city, on the ground that the city was immune from liability.  The complaint premised city liability on failure to enforce the permit.  Government Code section 821 immunizes a public employee from liability for injuries caused by failure to enforce an enactment.  Under Government Code section 815.2(b), the city's vicarious liability for its employees' acts was subject to this immunity.  The city was also immune from liability under Government Code sections 818.2 (failure to enforce law) and 818.4 (permit immunity).  The plaintiffs contended that the permit imposed mandatory, ministerial duties of enforcement on city personnel.  But the language of the permit, which stated that the city reserved the right to amend, modify, or change the terms and conditions of the program and take other steps at its discretion, directly contradicts plaintiffs' contention that the permit imposes mandatory duties.  The city had discretion to remove parked scooters or to revoke Bird's permit.  Plaintiffs argued that they could amend the complaint to state a claim for a dangerous condition of public property under Government Code section 835.  But the city cannot be held liable for third party negligence--such as a party negligently parking a scooter--absent a physical deficiency in the property itself that increased or intensified the condition of the property.  The city's sidewalks are not defective or dangerous pieces of property simply because third parties may improperly use them in a way that could cause harm to others.

The court reversed the demurrer as to Bird.  One justice dissented from that result.

Government Code Immunity for Controlling Disease May Be Asserted on Demurrer

In Greenwood v. City of Los Angeles, published March 27, 2023, the Second District Court of Appeal, Division 1 affirmed a judgment in the defendant city's favor, entered after the City's demurrer was sustained.  The plaintiff was a deputy city attorney.  She alleged that there was  a typhus outbreak near the city building where she worked; and that an accumulation of trash and other items at and adjacent to the building caused and contributed to an outbreak of typhus there.  She alleged the city was on notice of this dangerous condition of the building, and failed to take measures to protect against it.  The plaintiff alleged she was exposed to typhus in and around the building, and contracted the disease.  The city demurred on the grounds including immunity under Government Code section 855.4.  After multiple amendments, the trial court sustained the city's demurrer on that ground without leave to amend.

The appellate court agreed that section 855.4 immunity barred the lawsuit.  Section 855.4 immunizes public entities and employees from injuries resulting from the decision to perform or not to perform any act to promote the public health of the community by preventing disease or controlling the communication of disease within the community if the decision resulted from the exercise of discretion.  It also immunizes acts implementing such decisions, if they are carried out with due care.  The plaintiff argued that it could not be determined on the face of her complaint that her harms resulted from exercise of discretion, and that the complaint alleged lack of due care in implementing any exercise of discretion.  The plaintiff urged the court to draw from the case law interpreting the general discretionary immunity statute for public employees, Government Code section 820.2.  The appellate court declined.  It noted that section 820.2 applies only to public employees, while section 855.4 applies to both public entities and public employees.  Further, section 820.2 addresses only acts and omissions, while section 855.4 requires decisions to perform or not to perform an act.  Due to these differences, cases interpreting section 820.2 are not directly on point.  Instead, in interpreting language in government immunity statutes, the court must concentrate on the reasons for granting immunity.  The purpose of section 855.4 is separation of powers.  Therefore, to determine whether an exercise of discretion took place for purposes of section 855.4, the court should consider whether the challenged decision was one expressly entrusted to a coordinate branch of government, rather than the courts, in an area of of quasi-legislative policy-making which is sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.  A factor to consider is whether the entity made the challenged decision based on a specific legal duty; if so, it is far less likely the entity will be exercising discretion.  Under this analysis, it is apparent from the face of the complaint that the city's decision not to take action against the spread of typhus on the public property adjacent to the building was an exercise of discretion under section 855.4.  Nothing in the complaint suggests the ministerial performance of a mandatory duty.  Further, the section 820.2 requirement that the defendant bear the burden of establishing that an exercise of discretion took place, which precludes demurrer, should not be applied to section 855.4, at least in the context of a claim against a public entity rather than a public employee.  Since the face of the complaint established grounds for demurrer under the subdivision of section 855.4 dealing with discretionary decisions, the allegation that the decisions were not carried out with due care cannot defeat demurrer.   A defendant need not qualify for immunity under both subdivisions to be immune.  Each subdivision provides a separate immunity from suit.

A concurring justice questioned whether section 855.4 applies to a public entity's responsibility to keep its facilities safe and sanitary.  She nevertheless opined that the allegations of the complaint fell within the ambit of section 855.4, even if it is read narrowly to apply only to governmental action or nonaction in response to disease outbreaks. 

Under Privette Doctrine, Public Entity Owner of Roadway Was Not Liable for Alleged Dangerous Condition of Property That Resulted in Subcontractor's Employee's Death

In Marin v. Department of Transportation, ordered published February 23, 2023, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant department.  The department subcontracted to a company construction work on the department's highway.  The contract expressly delegated matters of safety at the project to the subcontractor.  The contract also provided that the department's residential engineer at the project site was authorized to make the final decision on questions concerning the contract, including as to work quality and acceptability and the manner of the performance at work.  One night, the department, at the subcontractor's request, closed two lanes of the highway. The contractor marked the closure by using traffic signs and an arrow board, a cone pattern with reflective tape, multiple signs, and construction and street lights.  Several department employees were on site.  While an employee of the subcontractor was on the site working, a car operated by a drunk driver entered the closed lanes of the project site, and struck and killed the employee.  The employee's survivors sued the DOT for vicarious liability for the alleged negligence of its employees, and for maintaining a dangerous condition of public property.  The department moved for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 because the department properly delegated workplace safety to the subcontractor.  The plaintiffs contended that triable issues of fact existed on whether the department retained control over the construction project.  The trial court granted summary judgment.

The appellate court agreed that the Privette doctrine barred liability.  Under the doctrine, when the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk does not permit the employee to seek recovery of tort damages from the principal if the principal did not cause the injuries.  The doctrine does not apply if the hirer of the contractor retains control of the site, and the exercise of retained control affirmatively contributed to the injuries.  If the injury takes place after delegation of safety to the contractor takes place, the court presumes the contractor alone was responsible for any failure to take precautions.  To rebut the presumption, the hirer must induce--not just fail to prevent--the contractor's injury-causing conduct, or the hirer's retained control must contribute to the injury independent of any contribution by the contractor.  Here, the contract expressly delegating control to the contractor established the Privette presumption applied, shifting the burden to the plaintiff to raise a triable issue of fact.  The portion of the contract giving the department final decision on questions concerning the contract did not raise a triable issue on whether retained control affirmatively contributed to the employee's death.  Undisputed evidence established that the department did not direct or order the means and methods the subcontractor used to provide worker safety, did not have responsibility for setting up barriers, cones, or signs, and did not prevent the subcontractor from complying with its obligation to provide a safe work site.  Evidence that the department could have authorized further safety measures, and expected the subcontractor's employees to learn and follow department safety policies, at most shows that the department passively permitted an unsafe condition.  That is not affirmative contribution to the injuries.

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.

The Hazardous Recreational Activity Immunity Protected a City from Liability for a Paddleboarder's Drowning

In Mubanda v. City of Santa Barbara, published January 24, 2022, the Second District Court of Appeal, Division 6, affirmed summary judgment for the defendant city in a wrongful death lawsuit alleging a dangerous condition of public property.  The city leased space in the Santa Barbara Harbor area to a paddleboard rental company.  The lease required the company to pay the city 10 percent of the company's gross receipts from rentals of paddleboards.  The harbor has several artificial features.  The harbor is dredged annually to maintain a navigable depth.  City officials sought to minimize the risks in paddle boarding by taking such precautions as creating harbor maps showing safer areas to paddle board; posting signs reminding paddle boarders to stay in the preferred paddling area; and instructing tenants to distribute to those who rented paddle boards a lanyard with safety points and to direct the customer to wear the lanyard.  The plaintiff's decedent fell off a rented paddle board between two artificial constructs in the harbor.  The trial court ruled that the city was entitled to summary judgment under Government Code section 831.7's immunity for hazardous recreational activities.

The appellate court agreed.  There was no dispute that paddle boarding is a dangerous recreational activity.  Section 831.7's non-exclusive list of hazardous activities includes boating, and there is no evidence that paddle boarding is less hazardous.  The plaintiff contended that the statutory exceptions to the immunity applied.  The court rejected the argument that the failure to warn exception applied.  The exception does not apply to failure to warn of hazards inherent in the activity.  The risk of falling off a paddle board and drowning in a harbor is inherent in that type of activity.  Although the harbor was deeper at the point where the decedent drowned, there was no evidence that the depth increased the risk of drowning as opposed to the surrounding area.  The gross negligence exception required evidence of want of even scant care or an extreme departure from the ordinary standard of conduct.  There was no such evidence in this case.  Instead, the city took measures to promote the safety of paddle boarding in the area.  Although the plaintiff's expert opined that the city's conduct constituted an extreme departure from the applicable standards of care, the opinion was simply an expert's expression of his general belief as to how the case should be decided, and is not admissible for that purpose.  Finally, the except for specific payment of fees did not apply.  While the city received a percentage of gross sales for paddle board rentals, that is not the same as receiving a specific fee for permission to participate in paddle boarding.

Constructive Notice Standard for Defect in Alley Is Different from Standard for Sidewalk Defect

In Martinez v. City of Beverly Hills, published November 10, 2021, the Second District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell when her rubber flipflop edge hit the edge of a drainage swale in the alley through which she walked.  The asphalt that was normally flush against the edge of the swale had worn away, creating an approximately 1.75" divot.  The divot had been there for at least two years.  The city has an inspection program under which it hires a contractor every two years to inspect the city's streets and alleys and prepare a report spelling out the condition of the alley or street, which the city uses to prioritize resurfacing projects.  The project is not to identify specific divots.  The city will also inspect and if warranted repair any potential hazards in response to user calls.  The city had not inspected this alley since at least seven years before the accident.  In the six years before the accident, the city had received no complaints or work orders concerning this divot.  The year before the accident, the city received a user call reporting a large indentation in the alley.  A city crew went to the alley to repair the indentation, and filled three large potholes.  The crew did not repair the divot.  Per the supervisor, if the crew had seen the divot, it would have done nothing to fix it because the size was insignificant and the material used to patch the potholes cannot be used for small divots.  The trial court granted summary judgment on the ground that the city had no actual or constructive notice of the divot.

The appellate court agreed that summary judgment was appropriate on the notice issue.  It found no triable issue of fact on whether the city had actual notice.  It rejected the argument that every possible city employee who may have been in the alley in the past had to present a declaration denying knowledge of the divot.  In light of the supervisor's declaration that the crew that fixed the potholes that the crew would have taken no notice of the divot because it was too insignificant, any inference that employees who did not present declarations would have noticed the divot was not reasonable.  To prove constructive notice, the test is whether the defect was sufficiently obvious under the circumstances.  Under Government Code section 835.2, the test for obviousness includes considering whether the property was safe for intended or actual known uses of the property.  While sidewalks are intended for persons to walk on, alleys are intended for vehicle use and only occasional pedestrian use.  Public policy warrants requiring more rigorous scrutiny of sidewalks for defects than alleys.  Because alley surfaces degrade far more quickly than sidewalk surfaces, due to use by heavy vehicles, the cost of keeping alleys safe for pedestrians is higher than for sidewalks, and the likelihood of injury to pedestrians is lower.  Public entities may therefore reasonably elect to apply less rigorous scrutiny for defects as compared to sidewalks.  The divot here was therefore, as a matter of law, not sufficiently obvious to create constructive notice.