Dolquist v. City of Bellflower

• Decision Date: 17 November 1987
• Citation: 196 Cal.App.3d 261,241 Cal.Rptr. 706
• Court: California Court of Appeals Court of Appeals
• Parties: Bulah B. DOLQUIST, Plaintiff and Appellant, v. CITY OF BELLFLOWER, Defendant and Respondent. B024895.

Page 706

241 Cal.Rptr. 706

196 Cal.App.3d 261

Bulah B. DOLQUIST, Plaintiff and Appellant, v. CITY OF BELLFLOWER, Defendant and Respondent.

B024895.

Court of Appeal, Second District, Division 7, California.

Nov. 17, 1987.

Ackerman, Ling, Russell & Mirkovich, Long Beach, for plaintiff and appellant.

Clausen, Harris & Campbell and Marie D. Clause and Gregory P. Orland, Los Angeles, for defendant and respondent.

ROBERSON, Associate Justice. ^*

Plaintiff, Bulah Dolquist, appeals from summary judgment in favor of defendant

City of Bellflower and against plaintiff in a personal injury action.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Nature of Action

This action arose as a result of personal injuries allegedly sustained in a fall by plaintiff (hereinafter referred to as appellant), when her shoe heel caught on a piece of rebar (reinforcing steel) protruding from the top of a concrete tire stop located on property owned by defendant (hereinafter referred to as respondent).

The alleged accident occurred on April 11, 1984, and on December 17, 1984, appellant filed her complaint in the Los Angeles Superior Court for personal injuries she claims to have sustained in the fall. The complaint alleges among other things that appellant's injuries were proximately caused by respondent's negligence in the ownership, construction, management, maintenance and operation of a dangerous condition on public property.

B. Grant of Summary Judgment

After filing its answer to appellant's complaint in which respondent asserted as one of its affirmative defenses that appellant's purported injuries were the result of a "trivial defect" as defined by Government Code section 830.2, respondent filed its motion for summary judgment. ¹

The motion for summary judgment was heard in the superior court on November 6, 1986, at which time it was granted. Judgment was entered on November 17, 1987. This appeal followed.

II FACTS

On April 11, 1984, appellant, a 68-year-old woman parked her automobile in a parking lot behind a commercial establishment located on Bellflower Boulevard in the City of Bellflower, to visit a friend who was the co-owner of one of the shops in the complex. ² She alighted from her automobile, which as usual was parked behind her friend's place of business, stepped across a parking abutment and entered his store to visit him. At approximately 5:00 p.m. ³ or thereabouts, appellant left her friend's place of business, again crossed the parking abutment to return to her automobile. After arriving at her automobile she yet again crossed the parking abutment and began walking in the direction of her friend's store to assist him with some boxes. While walking in the direction of the business she raised her foot to step over one of the parking abutments; as she was stepping over the abutment her right shoe heel caught a portion of a rebar (steel reinforcement) ⁴ that protruded out of the parking abutment causing her to lose her balance and fall forward. As she fell forward appellant put her hands forward so that she landed on her extended hands. In the fall she sustained injuries to her left At her deposition, appellant initially testified that she looked down at the parking abutment as she crossed over it and saw the reinforcement rod. However, she later testified that she did not see the rod as she crossed over the abutment. She explained that even though she saw a hole she did not see the reinforcement rod because it looked flush to her.

arm and shoulder, she also sustained a broken bone in her elbow.

On September 14, 1984, respondent caused an inspection to be made of the area where appellant fell. At that time it was determined that the "steel rod" (rebar) which protruded from the concrete (automobile abutment) was one-quarter of an inch above the concrete.

Prior to appellant's accident of April 11, 1984, respondent had not been notified of any injury, accident, or other complaint from anyone concerning the steel rod; nor had respondent prior to the accident in issue, ever been notified of any injury, accident or other complaint involving the area in question. ⁵

The city parking lot is separated from the alley by a 36-inch wide divider, constructed of 5 3/16-inch wide concrete tire-stops placed in parallel lines and filled with asphaltic concrete. The tire-stops are held in position on the asphaltic concrete surface by rebar (reinforcing steel) driven into the asphaltic concrete surface. Two rebar sections were used for each of the concrete tire-stop sections.

In the area where the accident occurred, the rebar was not flush because the section of it extended above the surface of the tire-stop, approximately one-quarter of an inch. In this location, the maximum height above the asphaltic concrete surface was 5 7/16 inches.

Charles E. Turnbow, a professional safety engineer licensed by the State of California, retained by appellant's attorney, after having considered the circumstances surrounding the claimed dangerous condition gave his opinion that "the extension of the rebar above the flat walking surface at a curb level creates a significant and serious tripping hazard."

These facts were presented to the court in respondent's motion for summary judgment and in appellant's opposition thereto.

III DISCUSSION

"The rules governing summary judgment are well established. (1) Because summary judgment is a drastic remedy which eliminates the right to a trial on the merits, it must be granted with caution and only after the trial court determines 'that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' [Citations.] (2) Further, ' "[T]he party moving for summary judgment has the burden of showing by declarations or affidavits setting forth facts admissible as evidence in a trial that the claims or defenses of the adverse party are entirely without merit on any legal theory...." ' " (Stalnaker v. Boeing Co. (1986) 186 Cal.App.3d 1291, 1297, 231 Cal.Rptr. 323.)

Thus a prerequisite to summary judgment is that "... all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civ. Proc., § 437c, subd. (c); see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) Where as in the case at bar, a defendant seeks summary judgment, his declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate an absence of an essential element of plaintiff's case. If defendant establishes the foregoing, and the plaintiff's declaration in reply does not show that there is a triable issue of fact with respect to that defense or that an essential element exists, the summary The thrust of respondent's argument, which was accepted by the court below in granting summary judgment, was that the quarter-inch protrusion of the steel reinforcement rod (rebar) on which appellant caught her heel and fell, was a "trivial defect" within the meaning of Government Code section 830.2. ⁶

judgment should be granted. (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 138 Cal.Rptr. 670.)

Before discussing the issue of whether the "defect" in the case at bar was "trivial" as a matter of law, we should first review the pertinent code sections involved. Government Code section 830 defines the concept of dangerous condition insofar as that term applies to dangerous conditions of public property, as follows: "(a) 'Dangerous condition' means 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."

Government Code section 830.2 tells us when, within the meaning of the chapter of the Government Code, dealing with dangerous conditions of public property, a condition is not dangerous: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was 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...."

And finally, Government Code section 835 specifies the conditions of liability as follows: "... 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: [p] ... or [p] (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."

Although it is for the court to determine whether, as a matter of law, a given defect is not dangerous, the court should not rely solely on the size of the particular defect in making that determination. "While size may be one of the most relevant factors to the decision, it is not always the sole criterion." (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734, 139 Cal.Rptr. 876.) In making the determination of whether a claimed defect is trivial as a matter of law and therefore not a "dangerous condition" within the meaning of Government Code section 830, in the context of a claim against a public entity, the court should...