The Trivial-Defect Doctrine: Where It Came From. How to Beat It. (Part 4)

The Trivial-Defect Doctrine: Where It Came From. How to Beat It. (Part 4)

page 4

By Clinton E. Ehrlich

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Strategy 6: Highlight aggravating circumstances

The defense will cite multiple cases where relatively large defects were held to be trivial as a matter of law. Plaintiffs’ lawyers need to give the courts the opportunity to distinguish those cases by presenting them with factors that may be cited as “aggravating circumstances”, which allow liability for an otherwise trivial defect. (Fielder v. City of Glendale, 71 Cal.App.3d 719, 726.)

a. Was the defect, by its nature, especially likely to cause injury?

Courts have recognized that characteristics other than abstract height may substantially increase the risk of injury from a particular defect. Plaintiff’s counsel should consider whether the pathway at issue had any broken pieces or jagged edges. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567.) The presence of grease, debris, or water on the defect may also make it more dangerous. (Id.) Even in the absence of those factors, the presence of several irregularly shaped defects just inches apart may elevate the danger they pose by decreasing a pedestrian’s ability to regain his or her balance after first stumbling. (Id. at 569.)

Courts have sometimes been willing to consider the size of a defect in broader terms than simply its vertical rise above a pathway. For example, an otherwise trivial rise in the sidewalk may be considered dangerous if a gap in the adjacent curbing is likely to trap the shoes of pedestrians whose feet strike the rise. (Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 52.)

Courts have also differentiated between the risk posed by nonaligned sections of a sidewalks and that posed by “protrusions” that extend up through the surface of the sidewalk. (Dolquist v. City of Bellflower, 196 Cal.App.3d at 269-270.) The latter may pose an increased tripping hazard. For example, a quarter-inch high protrusion of metal rebar has been deemed “large enough to cause an injury while being small enough to avoid easy detection.” (Id.)

b. Was the defect readily visible to the plaintiff?

A central aggravating factor that courts have considered is whether there were any circumstances which impeded the plaintiff’s ability to detect the defect. These include the plaintiff’s lack of familiarity with the area, the presence of foreign substances, poor weather conditions, or inadequate lighting. (Stathoulis v. City of Montebello, 164 Cal.App.4th at 567-568

Even in the absence of those clear impediments to visibility, a defect may still be so difficult to detect as to render it particularly dangerous. For example, the Court of Appeal has held that a drain that was recessed by approximately a third of an inch may constitute a dangerous condition based on the difficulty a pedestrian would have in detecting the change in elevation. (Kasparian v. AvalonBay Communities,156 Cal.App.4th 11, 21.) It noted that, even in daylight, there was no difference in color or texture to distinguish the drain from the surrounding pavers and that a pedestrian would reasonably expect the surface to be level in light of the construction of all the surrounding drains. (Id. at 28-29.)

c. Was the Defendant on notice of the defect and the danger it posed?

The Supreme Court held in Barrett that if a defect is so minor that its continued existence is not unreasonable, no liability may result, irrespective of the question of notice. (Barrett v. City of Claremont, 41 Cal.2d at 73.) But the Court of Appeal has since qualified that holding and indicated that evidence of prior accidents attributable to the defect, standing alone, is normally sufficient to raise a triable issue of fact about whether it is dangerous. (Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290.)

Similarly, the Court of Appeal declined to apply the trivial-defect doctrine when there was evidence that the defendant city was aware that its activities had resulted in a defect but decided not to repair it based on the mistaken belief that, because the defect was in front of private property, the city could not be held liable. (Aitkenhead v. City and County of San Francisco, 150 Cal.App.2d at 52-53.) The court considered that one of the circumstances aside from the physical condition of the area that established the defect should not be excused as the type of imperfection that reasonably exists even with the exercise of due care.

d. Was the defect caused by something beyond normal wear and tear?

Courts have long held that one important circumstance to be considered is the “nature of the defect, that is, whether it is a constructional one, one caused by natural causes such as normal wear or tear, the elements, or tree roots, etc., or whether it is an artificial break in the sidewalk.” (Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 698.)

Though it may be impossible to perfectly maintain sidewalks and pathways, defendants presumably have a duty to refrain from creating tripping hazards in the first instance. Thus, where plaintiff have been able to establish that defects were not the product of normal wear and tear, courts have often been reluctant to resort to the trivial-defect doctrine to excuse their existence. (See Johnson v. City of San Leandro (1960) 179 Cal.App.2d 794, 800; Dolquist v. City of Bellflower, 196 Cal.App.3d at 270.)


Despite its questionable historical origins, the trivial-defect doctrine has become firmly ensconced in California law, and it is likely to remain a fixture in sidewalk trip-and-fall cases. As long as that remains the case, plaintiffs’ lawyers can maximize their chances at overcoming the doctrine and defeating summary judgment by employing the strategies outlined above. ■

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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.