Posted On: November 29, 2011 by Robinson Calcagnie Robinson Shapiro Davis, Inc.

PREMISES LIABILITY: TRIVIAL DEFECTS

Cadam v. Somerset Gardens Townhouse HOA, (Second District, September 28, 2011, as modified October 28, 2011) --- Cal.Rptr.3d ----, 2011 WL 5110249, 11 Cal. Daily Op. Serv. 13,305

A 63 year old woman who was injured when she fell after tripping on a separation in a concrete walkway next to the townhome she was leasing, filed an action against a homeowner’s association and its management firm. Asserting causes of action for premises liability and negligence, the plaintiff alleged that the walkway had shifted and adjacent sections had separated such that they differed in height by three-fourths to seven-eighths of an inch, creating a dangerous condition.

Following a jury verdict in favor of the plaintiff, the trial court granted the defendants' motion for judgment notwithstanding the verdict. Although the HOA association president had testified that a defect of one-half inch or more is “probably” dangerous, the court found that no reasonable person could find that the condition was not a trivial defect under the circumstances.

The court of appeal affirmed, holding that “[a] trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development”:

"It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. ( Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, 19 Cal.Rptr.3d 254 [sidewalk crack less than one-half inch in depth].) This principle is sometimes referred to as the “trivial defect defense,” although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. (Ibid.) Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. (Ibid.) “The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” ( Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, 398, 237 Cal.Rptr. 413.) The rule is no less applicable in a privately owned townhome development. Moreover, what constitutes a minor defect may be a question of law. . . . . . . In our de novo review of the evidence, the walkway defect here was trivial as a matter of law. ( Stathoulis v. City of Montebello, supra, 164 Cal.App.4th 559, 569, 78 Cal.Rptr.3d 910 [court properly may determine whether defect is trivial if evidence is not in conflict].) The parties agreed that the walkway separation was three-fourths to seven-eighths inch in depth. Cadam testified that the accident occurred at noon on a sunny day. Cadam's photographs of the separation do not reflect a jagged separation, shadows, or debris obscuring the separation. ( Caloroso v. Hathaway, supra, 122 Cal.App.4th 922, 927, 19 Cal.Rptr.3d 254 [court should consider whether walkway had broken pieces, jagged edges, debris or water concealing the defect, and the lighting of the area, among other things].) There were no protrusions from the separation and other persons had not fallen there. The crack in the sidewalk does not appear to be on a slant as Cadam's counsel suggests. The walkway was newly constructed and the view of the separation was not obstructed. Moreover, Cadam testified that she did not see the separation because she “wasn't looking at [it].” Nor does she show where on the sidewalk she fell. . . . The opinion of Somerset's president that a defect of one-half inch or more is “probably” dangerous does not preclude our conclusion that the defect on which Cadam stumbled is trivial. ( Fielder v. City of Glendale, supra, 71 Cal.App.3d 719, 732, 139 Cal.Rptr. 876 [“For in this area there is no need for expert opinion”].) “It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Ibid.)

Moreover, the duty of care imposed on a property owner, even one with actual notice of a defect, does not require the repair of minor or trivial defects."

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