The Trivial-Defect Doctrine: Where It Came From. How to Beat It. (Part 2)
By Clinton E. Ehrlich
The first case to substantially reduce a plaintiff’s ability to sue for small sidewalk defects was Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 364. But even there, the Supreme Court recognized that “a minor defect may well be dangerous to travel.” The Court held, however, that the existence of those defects, though potentially dangerous, was not itself sufficient to impart constructive notice on a municipality.
That approach seems fundamentally contrary to the way the modern trivial-defect doctrine is applied, which absolutely eliminates liability for “minor defects,” irrespective of the issue of notice. That being the case, one might assume that in the decades since its opinion in Nicholson, the Supreme Court has renounced its analysis and expressly crafted a new rule for small defects. But surprisingly, the modern line of trivial-defect authority can all be traced back to an opinion that the Court issued only a year after Nicholson.
That case, Whiting v. National City (1937) 9 Cal.2d 163, 164, centered on whether an injured pedestrian could recover under the Public Liability Act after falling on a three-quarter- inch rise in a city sidewalk. In reversing a judgment for the plaintiff, the Court used language that has since been relied on for the proposition that a small defect is too trivial to present a substantial risk of injury. The most commonly-cited passage reads as follows:
Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise, the city could be held liable upon a showing of a trivial defect. (Id.)
But the Whiting Court never expressly held that the defect before it was too trivial, as a matter of law, to constitute a dangerous condition. Read in context, the quoted language simply suggests that municipalities will not “necessarily” be liable for minor defects because the existence of such defects is insufficient to impart constructive notice. The Whiting Court stated as much in a section of its opinion that has been virtually lost to history – its conclusion, which harmonized its holding with that of Nicholson:
We are satisfied that the facts of this case bring it within the rule of the Nicholson Case. There it was held that it is not enough to charge the city with constructive notice of the existence of a minor defect in the sidewalk, but that in order to hold the city because of such defect there must also be notice of the dangerous character of such defect before the duty imposed by the statute is created. There is here present no element of conspicuousness or notoriety showing any dangerous character in the slight rise of a portion of a sidewalk, which would put the city authorities upon inquiry or place upon them the duty of remedying the defect or condition pursuant to the provisions of the statute. The holding in the Nicholson Case that the continued existence of a minor defect is in itself insufficient to impose liability upon the city for injuries resulting therefrom is recognized as the law in other jurisdictions. [Citations] In view of the holding in the Nicholson Case and the pertinent authorities elsewhere, we conclude that the constructive notice found by the court is insufficient to support the judgment. (Id. at 166.)
Some courts of that time narrowly construed Whiting as preventing municipalities from being charged with constructive notice of small sidewalk defects. (See e.g., Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 668-669.) But the overwhelming majority of opinions were not so circumspect. The year that the Whiting opinion was issued, the Court of Appeal uncritically cited it in a case against a private landowner as authority for the proposition that “minor defects are bound to exist in sidewalks and where the defect is trivial no liability exists.” (Dunn v. Wagner (1937) 22 Cal.App.2d 51, 54.) This absolute bar to liability for so-called “trivial defects” continued to be applied in favor of private defendants for more than a decade without discussion. (See e.g., Clarke v. Foster’s, Inc. (1942) 51 Cal.App.2d 411, 414; Robson v. Union Pac. R. Co. (1945) 70 Cal.App.2d 759, 761.)
It was not until Graves v. Roman (1952) 113 Cal.App.2d 584, 585 that an appellate opinion considered the propriety of that rule. The plaintiff in Graves argued that the trivial-defect doctrine originated in cases against municipalities and its application should be limited to the question of constructive notice that arises in that context. But the court rejected that argument and said the “obvious answer” lay in the previous decisions that had, without comment, invoked the trivial-defect concept in cases against private entities where notice was not an issue. Truth had been created through repetition.
The following year, in Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73, the California Supreme Court cited Graves as it held that if a defect was minor, “irrespective of the question of notice of the condition, no liability may result.” In a strongly worded dissent, Justice Jesse W. Carter argued that the majority was misapplying the Court’s prior authority about trivial defects, which had been exclusively concerned with constructive notice and that in so doing it was immunizing defendants from liability for unobtrusive but dangerous conditions. (Id. at 78.) He feared that the majority’s approach, which provided no fixed rules or standards for which defects were sufficiently dangerous to impose liability, would leave trial judges and appellate courts to arbitrarily guess which defects were or were not trivial. (Id. at 79.)
In Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 289, the Court of Appeal acknowledged the mistake that Justice Carter had pointed out over two decades earlier. Said the Court, “Although a number of cases which set forth [the modern trivial-defect rule] appear to misapprehend the actual holding in Whiting, nevertheless, the rule itself is well established and has been consistently applied.” Put differently, the rule had gained too much judicial inertia for its application to be restrained.
Whether or not Justice Carter’s fears about the rule’s impracticality have been realized is debatable. In some cases, courts have held that defects between a half-inch to an inch high were dangerous conditions. (See, e.g., Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463, 467.) In other instances, they have held that defects as large as one and a half inches are trivial as a matter of law. (See, e.g., Marin v. Carl Karcher Enterprises, Inc. (Cal. Ct.App. 2006) 2006 WL 3323558.) The Court of Appeal summarized the situation with the observation that “when the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.) Yet that standard still leaves many seriously-injured plaintiffs unable to recover.
One potential solution may lie in the approach to duty adopted by Rowland v. Christian (1968) 69 Cal.2d 108, 119, which could arguably render the triviality of a defect simply one relevant factor to consider in evaluating the reasonableness of a defendant landowner’s conduct. The Court of Appeal rejected that argument in Ursino v. Big Boy Restaurants, 192 Cal.App.3d 398-399. But more recently, it has indicated that the trivial-defect doctrine should be “closely scrutinized in view of the ‘marked changes in the law’ made by Rowland v. Christian.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 56, 1343, n. 17.) If the Supreme Court were ever to grant review of that issue, it could provide it an opportunity to overhaul the current system.
Until such a change in the law, defendants will continue to invoke the trivial-defect defense at every opportunity. But within the existing legal framework, there are still several strategies that plaintiffs’ lawyers can employ to maximize their clients’ chances of overcoming the doctrine and allowing their cases to reach trial.