The Trivial-Defect Doctrine: Where It Came From. How to Beat It.

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The Trivial-Defect Doctrine: Where It Came From. How to Beat It.

By Clinton E. Ehrlich

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Clinton E. Ehrlich studies law with his father, Jeffrey I. Ehrlich, and is a law clerk at the Ehrlich Law Firm in Los Angeles, California.
Clinton E. Ehrlich studies law with his father, Jeffrey I. Ehrlich, and is a law clerk at the Ehrlich Law Firm in Los Angeles, California.

I. The History and Rationale of the “Trivial-Defect Defense”

The “trivial-defect doctrine” is the defense strategy of choice in sidewalk trip-and-fall lawsuits. It is a formidable weapon because it allows a judge to determine that the sidewalk defect that caused the plaintiff’s fall was “trivial” and therefore not actionable as a matter of law instead of submitting the question of a defendant’s negligence to a jury. In essence, the court holds that the defect at issue was so trifling that, as a matter of law, it was reasonable for the defendant to allow the defect to go unrepaired.

Athough it is sometimes referred to as the “trivial-defect defense,” and has been discussed as if it were an affirmative defense in certain appellate opinions, such as Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 264, and Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396, California courts now treat it as an element of duty which a plaintiff must plead and prove. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Recent cases treat the trivial-defect doctrine as a longstanding and self-evident rule, whose existence is compelled by the obvious impossibility of maintaining walkways in perfect condition.

In reality, the modern trivial-defect doctrine is a heavily mutated version of legal principles from the 1920s, which are virtually unrecognizable in their current form and have ceased to serve their original function. Justice Brennan once analogized the evolution of legal precedent to the children’s game “telephone” – a message is repeated from one person to another, and then another, and after some time, the message bears little resemblance to what was originally spoken. Such is the mode by which, in the decades since their inception, the message of the trivial-defect doctrine’s forbearers has become heavily distorted.

At common law, citizens were unable to recover damages for personal injuries suffered as a result of defects in public property because municipalities enjoyed immunity for all acts performed in a governmental capacity. California’s legislature sought to remedy that situation with the Public Liability Act of 1923, which created a two-pronged requirement for citizen suits against municipalities. (Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363.) First, a citizen had to establish that he or she was injured by a dangerous condition of public property. Second, the citizen had to establish that the municipality had knowledge or notice of the condition and failed to remedy it within a reasonable time. In essence, the Act functioned in a manner roughly analogous to that of the present-day Government Code section 835. (See Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 833.)

The initial cases construing the 1923 statute recognized that even small sidewalk defects could be dangerous conditions. In Rafferty v. City of Marysville (1929) 207 Cal. 657, 664, the California Supreme Court recognized that for pedestrians, “misjudgment by the fraction of an inch is sufficient to disturb the physical equilibrium.” The Court cautioned that the varying facts and circumstances of different cases made it impossible to create a broadly-applicable rule about which conditions were dangerous. (Id. at 660-661.)

A pedestrian’s ability to recover damages for small defects was reaffirmed in Hook v. City of Sacramento (1931) 118 Cal.App. 547, 552, which held that whether a ½ to 1½ inch sidewalk depression was a dangerous condition presented an appropriate factual question for a jury. The Hook court reasoned that “the public is entitled to be protected against small defects, which are liable to cause injury, as well as large ones.” It held that whether a particular defect is dangerous cannot be determined by its size, “since small objects, as well as large ones, may render a street unsafe.”

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Clinton E. Ehrlich studies law with his father, Jeffrey I. Ehrlich, and is a law clerk at the Ehrlich Law Firm in Claremont, California.

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