Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County Super. Ct. No. LC070445, Richard A. Adler, Judge.
Law Offices of Joseph R. Zamora and Joseph R. Zamora for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, and Janet G. Bogigian, Assistant City Attorney, for Defendant and Respondent City of Los Angeles.
Hinshaw & Culbertson, Filomena E. Meyer and Peggy Kolkey for Defendants and Respondents American Residential Services, a California General Partnership and American Residential Services, LLC.
Law Office of Priscilla Slocum and Priscilla Slocum; Early, Maslach & Rudnicki and James Grafton Randall for Defendant and Respondent Charles P. Holbrook.
VOGEL, J.
This is a trip and fall case in which the trial court granted summary judgment, finding as a matter of law that a deviation in the elevation of a sidewalk was trivial. We reverse.
FACTS
A.
In 1996, the Ruth Elizabeth Holbrook Trust hired Rescue Rooter to replace part of a sewer line running from its property to Chandler Boulevard. In the process of doing the work (for which the City of Los Angeles had issued a permit), Rescue Rooter removed and replaced a portion of the sidewalk in front of the Trust’s property. When the work was finished, the City inspected the property and approved the work.
With regard to the property: It was a prior tenant (with the Trust’s approval) who had the work performed, but the Trust has owned the property at all relevant times and the issues on this appeal have nothing to do with who owned the property at any given time. For simplicity’s sake, we refer to the owner of the property as the Trust. With regard to Rescue Rooter: American Residential Services, a partnership, does business as Rescue Rooter and is included in our references to Rescue Rooter.
In October 2004, Rona Goldfarb tripped and fell on an uneven section of the sidewalk in front of the Trust’s property. She broke her hip and wrist and, in January 2005, sued the City and the Trust and, by a subsequent amendment, Rescue Rooter, alleging vis-à-vis the City that the sidewalk constituted a dangerous condition, and that the Trust had negligently maintained its property. The defendants answered, cross-complaints were filed, and discovery ensued.
B.
The Trust, Rescue Rooter, and the City filed separate motions for summary judgment on the ground that no duty was owed because, as a matter of law, the defect -- a change in elevation varying across the width of the walkway from 3/4 of an inch to about 1-1/4 inches -- was trivial. In opposition to the motion, Goldfarb presented the following evidence:
According to Goldfarb’s safety and forensic engineer, Charles Turnbow, the defect consisted of a change of elevation across the entire width of the walkway, which was caused by the subsidence of part of the sidewalk, which in turn was caused either by Rescue Rooter’s inadequate compaction of the substrate soil or its failure to pour the concrete to grade when the sidewalk was replaced. The change in elevation varied from 3/4 of an inch to 1-1/4 inches along the width of the sidewalk and, in Turnbow’s opinion, presented a “substantial tripping hazard” because the differential was sufficient to catch either the toe or leading edge of the heel during a normal stride, thereby causing a person to stumble. According to Turnbow, “hazards of this magnitude” (3/4 of an inch or greater) are categorized as defects subject to immediate repair. He explained:
“There is a consensus of modern authority that sidewalk defects or displacements greater than 1/2 inch create[] a substantial tripping hazard. Even under the old ‘tape measure’ approach, a sidewalk with a[n] ‘average’ displacement of 1 inch is considered dangerous. In this case, the average displacement is the average of 1-1/4 inches on the south side and 3/4 inches on the north side of the sidewalk. This average is 1 inch. Under any criteria, the displacement must be considered a substantial defect.”
Bruce Meyers, a City Inspector, testified during his deposition that “the general way [the City will] look at it, if you slide a toe across [a sidewalk displacement], and it catches your toe, we consider it a tripping hazard.” In Meyers’s opinion, the displacement occurred when Rescue Rooter replaced the sidewalk because the compaction beneath the sidewalk did not reach the “90 percent” standard required by the Los Angeles Municipal Code. In his opinion, the displacement would not have occurred had the soil been properly compacted.
The trial court granted all three motions, finding that the defect (which it described as 1-1/4 inches) was trivial as a matter of law, and that Turnbow’s expert opinion was irrelevant because no expert was needed to decide whether the size of the displacement rendered it dangerous.
Goldfarb appeals from the judgment thereafter entered.
DISCUSSION
Goldfarb contends there are triable issues of material fact, and that the trial court erred in deciding, as a matter of law, that the defect was trivial. We agree.
A.
Persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition, and the duty of care imposed upon them does not require the repair of “trivial” or “minor” defects. (Whiting v. City of National City (1937) 9 Cal.2d 163, 166 [public property owner]; Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399 [private property owner].) The rule that permits a court to determine triviality as a matter of law “provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.” (Id. at p. 399.)
But there is no bright-line rule about what is “trivial” and what is not. On the contrary, the “decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial. A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, fn. omitted.)
B.
Goldfarb contends the trial court erred in relying on a series of cases for an absolute rule based solely on the height of the deviation. We agree.
In Barrett v. City of Claremont (1953) 41 Cal.2d 70, the filler used in the construction of sidewalk slabs expanded and contracted, creating a ridge about five inches wide. At the center, its highest point, the ridge was about one-half inch above the surface of the sidewalk and tapered gradually on each side to the level of the walkway. (Id. at pp. 71-72.) The Supreme Court found as a matter of law that the defect was “minor.” In Caloroso v. Hathaway, supra, 122 Cal.App.4th 922, Division Four of our court found an elevation ranging “from zero to either 0.4 or seven-sixteenths of one inch” was trivial as a matter of law. (Id. at pp. 925-926.) The other cases relied on by the trial court are similar. (Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363 [assuming that “a difference in grade at the break of not more, and possibly less, than an inch and a half” was not trivial].)
Goldfarb’s case differs in several major respects, and her evidence establishes that this defect posed a greater danger of injury than those disclosed in other trivial defect cases. (Barrett v. City of Claremont, supra, 41 Cal.2d at pp. 74-75.) First, the difference in grade was not limited to one spot in the sidewalk but ran the entire width of the walkway. Second, the difference in elevation varied from a low of 3/4 of an inch to a high of 1-1/4 inches. Third, Goldfarb’s expert explained that the height differential presented a significant tripping hazard because it was sufficient to catch either the toe or the leading edge of the heel during a normal stride, thereby causing a person to stumble. Fourth, the City Inspector testified that the defect was sufficient to be considered a tripping hazard under the City’s maintenance practices and that, had he known about the defect, he would have had it corrected. Fifth, photographs included in the record on appeal support the expert’s and the inspector’s testimony. (Gentekos v. City and County of S.F. (1958) 163 Cal.App.2d 691, 696 [dangerousness is normally a question of fact]; Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, 151 [liability may be based on small defects if injury is likely to result]; Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 291-292 [an irregular and jagged break of about one inch not trivial as a matter of law]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 721, 726.)
Rescue Rooter contends that, beyond the size of the displacement, there are no other factors in this case distinguishing it from the cases finding defects trivial as a matter of law. In context, it is clear that Rescue Rooter is talking only about the height differential, not the fact that it extended across the entire width of the walkway. In fact, all of the defendants ignore this point, just as they ignore the fact that, in most of the cases they rely on, there was a limited displacement (e.g., near a tree or a building). (Barrett v. City of Claremont, supra, 41 Cal.2d at p. 72 [displacement about 5 inches wide].)
Given this evidence, the trial court erred in finding as a matter of law that the defect was trivial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Put another way, there are triable issues of material fact about whether the deviation was a dangerous condition.
C.
Goldfarb contends the trivial defect defense is not available to Rescue Rooter, against whom the claim is simple negligence, not premises liability. Her assertion is overly broad but generally correct.
An independent contractor is under a general duty imposed by law to use reasonable care to prevent damage to persons he may reasonably expect to be affected by his work, and his liability is dependent on proof of negligence in his construction or knowledge of a dangerous condition; with regard to the latter, there must be proof that he knew or should have known his work was in a dangerous condition when he finished the work. (De Lima v. Magnesite Waterproofing & Refinishing (1987) 191 Cal.App.3d 776, 781.) In any event, the summary judgments must be reversed as to all defendants.
DISPOSITION
The summary judgments are reversed, and the cause is remanded to the trial court with directions to vacate its orders granting the motions and to place the case back on track for trial. Goldfarb is awarded her costs of appeal.
We concur:
MALLANO, Acting P.J., ROTHSCHILD, J.