This case was last updated from Los Angeles County Superior Courts on 04/11/2020 at 07:24:12 (UTC).

CATHERINE BYRNES VS CITY OF CLAREMONT

Case Summary

On 05/09/2018 CATHERINE BYRNES filed a Personal Injury - Other Personal Injury lawsuit against CITY OF CLAREMONT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, KRISTIN S. ESCALANTE and MARK A. BORENSTEIN. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5590

  • Filing Date:

    05/09/2018

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

 

Party Details

Plaintiff and Petitioner

BYRNES CATHERINE

Defendants and Respondents

DOES 1 - 25

CLAREMONT CITY OF

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CAHILL SEAN T.

CAHILL SEAN THOMAS ESQ.

Defendant Attorneys

RAMIREZ JACOB MICHAEL ESQ.

WRONIAK MICHAEL L

WRONIAK MICHAEL L.

 

Court Documents

Minute Order - MINUTE ORDER (COURT ORDER)

3/20/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Declaration - DECLARATION DECLARATION OF BYRNES

1/21/2020: Declaration - DECLARATION DECLARATION OF BYRNES

Objection - OBJECTION OBJECTIONS TO EVIDENCE IN SUPPORT OF OPPOSITION

1/31/2020: Objection - OBJECTION OBJECTIONS TO EVIDENCE IN SUPPORT OF OPPOSITION

Order - ORDER [MARCO NEILY (CSR #13564)]

2/5/2020: Order - ORDER [MARCO NEILY (CSR #13564)]

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT CI...)

2/5/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT CI...)

Declaration - DECLARATION DECLARATION OF SERVICE

2/14/2020: Declaration - DECLARATION DECLARATION OF SERVICE

Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING RE PHOTOS IN SUPPORT OF DEFENDANT CITY OF CLAREMONTS SUPPLEMENTAL BRIEF RE: HUCKEY V. CITY OF TEMECULA

2/21/2020: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGING RE PHOTOS IN SUPPORT OF DEFENDANT CITY OF CLAREMONTS SUPPLEMENTAL BRIEF RE: HUCKEY V. CITY OF TEMECULA

Separate Statement

11/14/2019: Separate Statement

Declaration - DECLARATION OF ROBERT VERBOYS IN SUPPORT OF THE CITY OF AVALONS MOTION FOR SUMMARY JUDGMENT

11/15/2019: Declaration - DECLARATION OF ROBERT VERBOYS IN SUPPORT OF THE CITY OF AVALONS MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF NICOLETTE R. HOEKSTRA IN SUPPORT OF DEFENDANT CITY OF CLAREMONTS MOTION FOR SUMMARY JUDGMENT

11/15/2019: Declaration - DECLARATION OF NICOLETTE R. HOEKSTRA IN SUPPORT OF DEFENDANT CITY OF CLAREMONTS MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF KRISTIN MIKULA IN SUPPORT OF THE CITY OF AVALONS MOTION FOR SUMMARY JUDGMENT

11/15/2019: Declaration - DECLARATION OF KRISTIN MIKULA IN SUPPORT OF THE CITY OF AVALONS MOTION FOR SUMMARY JUDGMENT

Notice - NOTICE DEFENDANT CITY OF CLAREMONTS COMPENDIUM OF EXHIBITS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

11/15/2019: Notice - NOTICE DEFENDANT CITY OF CLAREMONTS COMPENDIUM OF EXHIBITS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF ROBERT VERBOYS IN SUPPORT OF THE CITY OF CLAREMONTS MOTION FOR SUMMARY JUDGMENT

11/15/2019: Declaration - DECLARATION OF ROBERT VERBOYS IN SUPPORT OF THE CITY OF CLAREMONTS MOTION FOR SUMMARY JUDGMENT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION DEFENDANT CITY OF CLAREMONT N...) OF 07/17/2019

7/17/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON EX PARTE APPLICATION DEFENDANT CITY OF CLAREMONT N...) OF 07/17/2019

Memorandum of Points & Authorities

2/27/2019: Memorandum of Points & Authorities

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/12/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Substitution of Attorney

5/29/2019: Substitution of Attorney

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

5/9/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

50 More Documents Available

 

Docket Entries

  • 04/07/2020
  • DocketRequest for Dismissal; Filed by Catherine Byrnes (Plaintiff)

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  • 04/07/2020
  • DocketDeclaration (of Service by Mail); Filed by Catherine Byrnes (Plaintiff)

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  • 04/06/2020
  • Docketat 10:00 AM in Department 29, Kristin S. Escalante, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 03/20/2020
  • Docketat 10:51 AM in Department 29, Kristin S. Escalante, Presiding; Court Order

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  • 03/20/2020
  • DocketCertificate of Mailing for ((Court Order) of 03/20/2020); Filed by Clerk

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  • 03/20/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 02/24/2020
  • Docketat 1:30 PM in Department 29, Kristin S. Escalante, Presiding; Hearing on Motion for Summary Judgment (Filed By Defendant City of Claremont) - Held - Motion Denied

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  • 02/24/2020
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Judgment Filed By Defendant Ci...) of 02/24/2020); Filed by Clerk

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  • 02/24/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Jane Hong-Elsey - CSR #11975)); Filed by Claremont, City of (Defendant)

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  • 02/24/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment Filed By Defendant Ci...)); Filed by Clerk

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54 More Docket Entries
  • 03/12/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 03/12/2019
  • DocketMinute Order ( (Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer)); Filed by Clerk

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  • 03/05/2019
  • DocketReply (Memorandum of Points and Authorities by City of Claremont in Reply to Plaintiff's Opposition to Motion to Strike Portions of the Complaint); Filed by Claremont, City of (Defendant)

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  • 02/27/2019
  • DocketProof of Service by Mail (re: Memorandum of Points and Authorities in Opposition to Motion to Strike); Filed by Catherine Byrnes (Plaintiff)

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  • 02/27/2019
  • DocketMemorandum of Points & Authorities (in Opposition to Motion to Strike); Filed by Catherine Byrnes (Plaintiff)

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  • 01/04/2019
  • DocketNotice of Motion and Motion by City of Claremont to Strike Portions of Plaintiff's Complaint; Filed by Claremont, City of (Defendant)

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  • 12/28/2018
  • DocketProof of Personal Service; Filed by Catherine Byrnes (Plaintiff)

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  • 05/09/2018
  • DocketSUMMONS

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  • 05/09/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 05/09/2018
  • DocketComplaint; Filed by Catherine Byrnes (Plaintiff)

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Tentative Rulings

Case Number: BC705590    Hearing Date: February 24, 2020    Dept: 29

Byrnes v. City of Claremont

Motion for Summary Judgment by Defendant City of Claremont is DENIED. Defendant has not established that it is entitled to judgment as a matter of law. Code Civ. Proc. § 437c, subd. (c).

In this action, Plaintiff alleges she tripped and fell as a result of a defect on a public sidewalk in the city of Claremont. The alleged defect consisted of a vertical offset between two sidewalk slabs of about an inch. Plaintiff asserts a single claim under Government Code section 835 for dangerous condition of public property. Defendant City of Claremont moves for summary judgment, contending the defect is trivial as a matter of law.

EVIDENCE

The incident at issue here occurred on May 21, 2017 at approximately 10 a.m. on a clear, sunny day on a residential street in the city of Claremont. The sidewalk was shaded by a tree. Plaintiff was very familiar with the area and had walked down the subject street many times in the past.

Plaintiff estimated the height of the uplift as being an “inch, little more than an inch.” The estimate is corroborated by evidence that approximately fourteen months prior to this incident, the City of Claremont had inspected this sidewalk uplift and had concluded that the uplift did not need to be repaired because it was less than an inch. In support of the opposition, Plaintiff’s husband put in a declaration stating that the uplift was “more than an inch.” At the hearing, Plaintiff’s counsel stated that Plaintiff does not contest that the uplift is about an inch.

The City has no records of any reported injuries from the sidewalk uplift at that location, but there was a prior complaint about the uplift in 2016. As previously noted, Claremont inspected the uplift, but did not repair it.

Plaintiff testified that there were no cracks in the sidewalk and that she did not recall any jagged or broken edges. In the initial papers, Plaintiff’s husband submitted a declaration in which he stated that the uplifted panel “appeared to have jagged edges” and that there were “small broken pieces of sidewalk” in the elevated joint area. In his declaration, Plaintiff’s husband does not describe the extent or severity of these conditions, and, even though he stated he took photographs of the condition, the photographs were not included with the initial papers.

Plaintiff testified that there were lots of leaves and debris in the “channel,” presumably referring to the expansion joint between the two sidewalk panels. She testified that the leaves and debris “covered that lip almost completely.” She didn’t notice whether there were other parts of the sidewalk covered by leaves. Plaintiff’s husband also declared: “The height differential at the joint in the sidewalk where my wife caught her foot was obscured by leaves, dirt and debris. I had not seen the height differential when I passed this area of the sidewalk because it would not have been visible or appreciable due to the heavy shadowing and debris.”

Plaintiff further testified that there were “huge trees” on either side of the sidewalk and that area of the sidewalk “was completely shaded.” Plaintiff’s husband stated in his declaration that “[t]he area where [his] wife was injured had very poor visibility at the time of the incident due to heavy shadowing from the very large trees surrounding the area.” Photographic evidence shows that there was a significant difference in the lighting conditions of the portion of the sidewalk in shadows and other portions of the sidewalk. Plaintiff admitted, however, that she “could see the sidewalk.”

Neither party submitted any close-up photographs of the condition in the initial papers. The only photograph submitted in either party’s initial papers was a photograph taken from eye level in a standing position of the entire sidewalk showing shadows from the trees. The shadows appear to be very dramatic. The contrast on the photograph appears to be artificially manipulated to an unnatural level of contrast, however, and thus this photograph is of limited use.

The Court held an initial hearing on this motion on February 5, 2020. Just prior to the hearing, the Court provided the parties with a tentative ruling that stated that the Court was inclined to grant the summary judgment motion. Noting the neither party had provided photographs of the condition, the Court invited the parties to request the opportunity to submit additional evidence. The parties so requested, and the Court continued the hearing to 2/24/2020.

Both sides submitted photographs that were taken by Plaintiff’s husband on the date of the incident. In addition, Defendant submitted photographs that were taken by a representative of the City several months after the incident.

The photographs show that there are no appreciable jagged edges that would affect the dangerousness of the uplift; at most there is some minor erosion at the edge of the lifted panel. In addition, the photographs show that there was some dirt and leaves abutting the edge of the raised panel, but there is no evidence of a significant amount of debris in the area of the raised panel or elsewhere on the sidewalk. However, Plaintiff’s husband stated in his declaration that before the photographs were taken, he had “cleared away the debris” from the uplift.

Finally, the photographs show that the trees were casting dappled shadows on the pavement on the day in question. It again is difficult to discern how significant the shadows would have been to a pedestrian from the photographs.

DISCUSSION

Plaintiff asserts a claim under Government Code section 835. That section provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Here, Defendant argues that the undisputed evidence establishes that there was no “dangerous condition” on its property because the defect was trivial as a matter of law.

The term “dangerous condition” is defined in Government Code section 830, subdivision (a) as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code § 830, subd. (a)_. “The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one condition.” (Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal. 3d 799, 810.)

“The condition of the property involved [must] create a ‘substantial risk’ or injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility may be.” (Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 130 fn.5). Under the trivial defect doctrine, a condition does not constitute a “dangerous condition” under section 830 where the condition creates a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances [that] no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1104.)

“In appropriate cases,” the Court may determine “whether a given walkway defect was trivial as a matter of law.” (Id. at 1104-05). “Where reasonable minds can reach only one conclusion – that there was no substantial risk of injury – the issue is a question of law properly resolved by way of summary judgment.” (Id.) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. (Id.)

“The court’s analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.” (Id. (internal quotation marks and brackets omitted).)

The Court should decide whether a defect was dangerous “only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” Id. Among the factors to be considered are the size of the defect and “whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident and whether the defect has caused any other accidents.” (Id.)

In Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, the plaintiff sued the City of Temecula for injuries he sustained from tripping and falling on a defective city sidewalk, alleging that the sidewalk defect constituted a dangerous condition of public property. “The sidewalk was vertically uneven between two concrete panels, and the height differential” ranged from 9/16 of an inch to 1-7/32 inches (1.21875 inches) at the right edge. “Only the very right two feet of the deviation was greater than 3/4 of an inch.” “There were no broken concrete pieces or jagged concrete edges in the area of the height differential where plaintiff fell, and plaintiff adduced no evidence that the City had ever been notified of any trip and fall accidents, other than plaintiff’s claim, on or near the area of the height differential.”

The Huckey Court considered photographs that showed that there was some dirt and leaves in and near the height differential. But the evidence did not show that any dirt or leaves “substantially obscured the height differential from a pedestrian’s view.”

Based on this record, the Court concluded that “the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and therefore would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential with due care.”

The Court recognized, based on expert testimony presented, that the height differential posed some risk of injury. “But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed a ‘substantial (as distinguished from a minor, trivial or insignificant risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Court held that the substantial risk of injury standard had not been met. In reaching this conclusion, the Court assumed that the plaintiff was walking where the sidewalk differential was at its highest – 1.22 inches. Even with that assumption, the Court upheld the trial court’s order granting summary judgment, concluding the defect was trivial as a matter of law.

Applying Huckey’s two step analysis here, the Court first considers the type and size of the defect, the vertical displacement of a sidewalk slab measuring about an inch. Following Huckey, the Court concludes that this preliminary analysis reveals a trivial defect.

The Court next considers evidence of any additional factors to determine whether the defect presented a substantial risk of injury, taking into account all the circumstances. Here, the accident occurred on a bright sunny morning in May on a street with which Plaintiff was very familiar. The City has no records of any other accidents resulting from this defect. Plaintiff admits that there were no jagged edges on the uplifted portion of the slab. Although Plaintiff’s husband declared that the edge of the uplifted slab had jagged edges and that there were crumbling pieces of concrete near the edge, his testimony is too vague to constitute evidence of a dangerous condition. The photographic evidence shows that, at most, there is some mild erosion of the edge of the uplifted panel but there were no significant jagged or crumbling edges.

Plaintiff contends that the defect was difficult to see because there were leaves and twigs in the “channel” and because the trees in the areas cast shadows. As previously noted, with respect to the shadows, plaintiff testified that there were “huge trees” on either side of the sidewalk and that area of the sidewalk “was completely shaded.” Plaintiff’s husband also states that the area had “very poor visibility . . . due to heavy shadowing from the large trees surrounding the area.” This is corroborated by the photographs showing dramatic shadows.

With respect to the dirt and twigs, Plaintiff testified that there were “lots of leaves and debris in the channel” and that they “covered the lip almost completely.” She testified that she could not see the uplift because of the leaves and twigs. Plaintiff’s husband also declared that the uplift was “obscured by dirt leaves and debris.”

The photographs show that there were some leaves, dirt and twigs up against the edge of the uplifted panel, but the photographs do not show that the leaves completely covered the edge, obscuring it from view. However, plaintiff’s husband stated in his declaration that he had “cleared away the debris” from the joint before he took the photographs. While the photographs may call into question Plaintiff and her husband’s testimony that the dirt and debris “covered the lip almost completely” and obscured the lip from a pedestrian’s view, the Court cannot decide issues regarding the credibility of the testimony at the summary judgment stage. Plaintiff provides an explanation for the discrepancy between the photographs and the description of the condition in the testimony – Plaintiff’s husband had cleared away dirt and debris before taking the photographs. It is up to the jury, not the Court, to determine whether to accept that explanation.

The evidence regarding the shadows and the dirt and debris distinguish this case from Huckey. The Court in Huckey emphasized that “Plaintiff neither alleged in his complaint, nor stated in his declaration or deposition, that he had a difficult time seeing the height differential because dirt, debris, or a shadow obscured it from view.” The Huckey Court sustained objections to photographs that purported to show shadows because they were not taken at a similar time or in similar conditions as existed at the time the plaintiff had fallen. The photographic evidence regarding dirt and leaves showed that the dirt and leaves did not substantially obscure the height differential from a pedestrian’s view. Based on its review of this evidence, the Court concluded that “the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight” of a pedestrian walking in the area at the time of the accident.

Here, the Court cannot reach the same conclusion as a matter of law. Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could conclude that, because of the heavy shadowing and leaves, dirt and debris, the height differential would not have been in plain sight. The Huckey opinion suggests that this is enough to defeat summary judgment.

Accordingly, the Court denies the motion for summary judgment.

RULINGS ON OBJECTIONS

Defendant City of Claremont’s Objections to Evidence Offered By Plaintiff in Support of Plaintiff’s Opposition to the City’s Motion for Summary Judgment

Decl. of M. Kevin O’Neill

1. Overruled.

2. Sustained

3. Not material to the Court’s ruling

4. Not material to the Court’s ruling. The parties agree that the uplift was about an inch at the time of the incident.

5. Overruled.

Decl. of Daniel Byrnes

1. Overruled.

2. Overruled.

Moving party is ordered to give notice.

Case Number: BC705590    Hearing Date: February 05, 2020    Dept: 29

Byrnes v. City of Claremont

Motion for Summary Judgment by Defendant City of Claremont is GRANTED. The papers submitted show that there is no triable issue as to any issue of material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c, subd. c.

In this action, Plaintiff alleges she tripped and fell as a result of a defect on a public sidewalk in the city of Claremont. The alleged defect consisted of a vertical offset between two sidewalk slabs of about an inch. Plaintiff asserts a single claim under Governement Code section 835 for dangerous condition of public property. Defendant City of Claremont moves for summary judgment, contending the defect is trivial as a matter of law.

EVIDENCE

The incident at issue here occurred on May 21, 2017 at approximately 10 a.m. on a clear, sunny day on a residential street in the city of Claremont. The sidewalk was shaded by a tree. Plaintiff was very familiar with the area and had walked down the subject street many times in the past.

Plaintiff estimated the height of the uplift as being an “inch, little more than an inch.” The estimate is corroborated by evidence that approximately fourteen months prior to this incident, the City of Claremont had inspected this sidewalk uplift and had concluded that the uplift did not need to be repaired because it was less than an inch. In support of the opposition, Plaintiff’s husband put in a declaration stating that the uplift was “more than an inch.”

Plaintiff testified that there were no cracks in the sidewalk and that she did not recall any jagged or broken edges. Plaintiff’s husband submitted a declaration in which he stated that the uplifted panel “appeared to have jagged edges” and that there were “small broken pieces of sidewalk” in the elevated joint area. Plaintiff’s husband does not describe the extent or severity of these conditions, and, even though he states he took photographs of the condition, the photographs are not attached.

Plaintiff testified that there were lots of leaves and debris in the “channel,” presumably referring to the expansion joint between the two sidewalk panels. She testified that the leaves and debris “covered that lip almost completely.” She didn’t notice whether there were other parts of the sidewalk covered by leaves.

Neither party submitted any close-up photographs of the condition. The only photograph submitted was a photograph of the entire sidewalk showing shadows from the trees. There is no information regarding the time of day or year when the photograph was taken and there is no testimony that the photograph accurately depicted the scene on the day of the incident. In addition, the contrast on the photograph appears to be artificially manipulated to an unnatural level of contrast. The photograph is thus not useful to the Court’s analysis.

The City has no records of any reported injuries from the sidewalk uplift at that location, but there was a prior complaint about the uplift in 2016. As previously noted, Claremont inspected the uplift, but did not repair it.

DISCUSSION

Plaintiff asserts a claim under Government Code section 835. That section provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

“(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Here, Defendant argues that the undisputed evidence establishes that there was no “dangerous condition” on its property because the defect was trivial as a matter of law.

The term “dangerous condition” is defined in Government Code section 830, subdivision (a) as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Gov. Code § 830, subd. (a). “The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one condition.” Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal. 3d 799, 810.

“The condition of the property involved [must] create a ‘substantial risk’ or injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility may be.” Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 130 fn.5. Under the trivial defect doctrine, a condition does not constitute a “dangerous condition” under section 830 where the condition creates a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances [that] no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1104.

“In appropriate cases,” the Court may determine “whether a given walkway defect was trivial as a matter of law.” Id. at 1104-05. “Where reasonable minds can reach only one conclusion – that there was no substantial risk of injury – the issue is a question of law properly resolved by way of summary judgment.” Id. If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” Id.

“The court’s analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.” Id. (internal quotation marks and brackets omitted).

The Court should decide whether a defect was dangerous “only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” Id. Among the factors to be considered are the size of the defect and “whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident and whether the defect has caused any other accidents.” Id.

In Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, the plaintiff sued the City of Temecula for injuries he sustained from tripping and falling on a defective city sidewalk, alleging that the sidewalk defect constituted a dangerous condition of public property. “The sidewalk was vertically uneven between two concrete panels, and the height differential” ranged from 9/16 of an inch to 1-7/32 inches (1.21875 inches) at the right edge. “Only the very right two feet of the deviation was greater than 3/4 of an inch.” “There were no broken concrete pieces or jagged concrete edges in the area of the height differential where plaintiff fell, and plaintiff adduced no evidence that the City had ever been notified of any trip and fall accidents, other than plaintiff’s claim, on or near the area of the height differential.”

The Huckey Court considered photographs that showed that there was some dirt and leaves in and near the height differential. But the evidence did not show that any dirt or leaves “substantially obscured the height differential from a pedestrian’s view.”

Based on this record, the Court concluded that “the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and therefore would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential with due care.

The Court recognized, based on expert testimony presented, that the height differential posed some risk of injury. “But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed a ‘substantial (as distinguished from a minor, trivial or insignificant risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” The Court held that the substantial risk of injury standard had not been met. In reaching this conclusion, the Court assumed that the plaintiff was walking where the sidewalk differential was at its highest – 1.22 inches. Even with that assumption, the Court upheld the trial court’s order granting summary judgment, concluding the defect was trivial as a matter of law.

Applying Huckey’s two step analysis here, the Court first considers the type and size of the defect, the vertical displacement of a sidewalk slab measuring about an inch. This preliminary analysis reveals a trivial defect.

The Court next considers evidence of any additional factors to determine whether the defect presented a substantial risk of injury, taking into account all the circumstances. Here, the accident occurred on a bright sunny morning in May on a street with which Plaintiff was very familiar. The City has no records of any other accidents resulting from this defect. Plaintiff admits that there were no jagged edges on the uplifted portion of the slab. Although Plaintiff’s husband declared that the edge of the uplifted slab had jagged edges and that there were crumbling pieces of concrete near the edge, his testimony is too vague to constitute evidence of a dangerous condition. Plaintiff contends that the defect was difficult to see because there were leaves and twigs in the “channel” and because the trees in the areas cast shadows. While the Court does consider those factors, the Court concludes that the evidence, viewed in its entirety, establishes that the uplift in the sidewalk was a trivial defect as a matter of law.

Summary judgment is thus granted in favor of the Defendant City of Claremont and against Plaintiff Catherine Byrnes.