The Trivial-Defect Doctrine: Where It Came From. How to Beat It. (Part 3)
By Clinton E. Ehrlich
Strategy 1: Prevent the Defense from using a “tape-measure test”
The defense will inevitably argue that there is a consensus of California authority that defects below a certain height are trivial as a matter of law. When the defect at issue in a case is 7/8 of an inch or lower, the proffered consensus will be that a full inch in height is the clear line of demarcation. If the defect rises above an inch, the consensus will follow suit, fixing itself around an inch and a half.
It is critical that plaintiff’s counsel prevent the defense from manufacturing such a threshold. Luckily, there is some very helpful California authority on that issue. “Obviously, no fixed measurement in inches of height, depth, or width of an obstruction or depression can be adopted or established as a standard because a determination of whether a condition is trivial or not depends upon all of the circumstances surrounding the existence of the conditions in the particular case.” (Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 51.) “The size of the defect is only one circumstance to be considered, as no court has fixed an arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous.” (Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43.)
Strategy 2: Whenever possible, treat the size of the defect as a triable issue of fact
In some cases, especially those where the defect in question still exists and has been exhaustively photographed and measured, it may be necessary to concede that it was clearly a certain height. But in many cases, the defect is eliminated soon after the accident, and there may be only a handful of amateur photos and measurements before the court. In those circumstances, plaintiffs’ lawyers do their clients a disservice by failing to argue that a reasonable jury could find that the defect was sufficiently high to satisfy whatever standard the defense has invoked.
A trial court cannot rely on photographs to hold that a defect is trivial as a matter of law if reasonable minds could differ on whether the photographs correctly depict the alleged defect and its surrounding circumstances. (Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 26.) Where the size of a defect is a contested factual question, the probative value of photographs should be submitted to the jury. (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 137.)
Strategy 3: Emphasize the limited scope of a pedestrian’s duty of reasonable care
The thesis of the contemporary trivial-defect doctrine is that defendants are not liable for conditions on their property that do not pose a substantial risk of injury when used with due care. (Kasparian v. AvalonBay Communities, 156 Cal.App.4th at p. 27.) Consequently, the defense will attempt to expand the scope of the due care owed by a pedestrian so as to render virtually any defect in a sidewalk trivial. Familiarizing oneself with the California authority that limits the scope of what constitutes due care by a pedestrian is therefore critical.
It is well settled that a pedestrian has a right to assume that a sidewalk is in a reasonably safe condition and is not required to keep his or her eyes fixed on the ground or to be on constant lookout for defective conditions. (Peters v. City and County of San Francisco (1953) 41 Cal.2d 419, 424.) Nor does a momentary lack of attention to the condition of a sidewalk constitute contributory negligence, as such distractions are matters of common occurrence. (City of San Diego v. Perry, 124 F.2d at p. 632, Citing Perkins v. Sunset Telephone Co. (1909) 155 Cal. 712, 722 and Barry v. Terkildsen (1887) 72 Cal. 254, 255.)
A trial court commits a “basic error” if it makes “the assumption that a pedestrian is bound to anticipate and be on guard against dangers in walking over an area designed for pedestrian use. The rule is just the contrary.” (Roberts v. Patterson (1959) 170 Cal.App.2d 661, 667.) “A pedestrian making use of city walks is not bound to constitute himself an inspector of walks.” (Peters v. City and County of San Francisco, 41 Cal.2d at p.428.) Unless a pedestrian sees something unusual in the sidewalk ahead of her, she has the right to assume that the surface will be safe, and it would be negligent for her to walk with her eyes directed towards her feet, not looking where she was going. (Garber v. City of Los Angeles (1964) 226 Cal.App.2d 349, 358.)
Strategy 4: Frame the defect as one element of a broader dangerous condition
If the defect that injures a plaintiff is simply one part of a broader dangerous condition that the defendant created, the trivial-defect doctrine does not apply. (Clark v. City of Berkeley (1946) 143 Cal.App.2d 11, 16.) Instead, the defendant’s duty must be measured against the collective risk of harm posed by the dangerous condition’s various elements, not the particular defect that the plaintiff happened to encounter.
The court in Clark held that a plaintiff could recover against a city after she was injured on a half-inch variance in the sidewalk. Though that defect was trivial when viewed in isolation, the sidewalk itself was in such a dilapidated condition that the court concluded its cumulative perils posed a substantial risk of injury. If plaintiff’s counsel can identify a broader hazard of which the defect that injured his or her client is but a constituent element, he or she may be able to circumvent the trivial-defect doctrine. Such a hazard may be obvious, such as the obviously fragmented sidewalk in Clark. But the same analysis can be used with respect to latent issues, such as erosion or sinkholes, which may create a pattern of defects in a broader area.
Strategy 5: Use the Defendants’ safety standards against them
Defendants will often emphasize the stringent safety standards that they purport to employ on their property. If plaintiff’s counsel can establish that, under those standards, a defect the size of the one at issue would have been repaired, he or she will have powerful evidence that the defect that injured the plaintiff was not trivial.
The California Supreme Court made that clear in Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812, which held that the testimony of the defendant city’s sidewalk inspector provided substantial evidence to defeat the trivial-defect defense:
[The inspector] admitted that if he had seen a condition of the sidewalk such as that testified to and pictured in the photographs, he would have considered it hazardous and as requiring a correction of the defect or condition. In view of that evidence, it cannot be said as a matter of law that the defect was such a minor defect to be insufficient to impose liability upon the city for injuries resulting therefrom. (Id.)
The Court’s holding reflects the general rule that proof of practice and custom is admissible to assist in determining what constitutes due care. Both the majority and dissenting opinions of the Supreme Court in Palmer v. City of Long Beach, 33 Cal.2d at p. 144-145, thoroughly explained the extreme relevance of such evidence to the question of whether a sidewalk defect is trivial.