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.