Barone v. City of San Jose

• Decision Date: 31 March 1978
• Citation: 144 Cal.Rptr. 836,79 Cal.App.3d 284
• Court: California Court of Appeals Court of Appeals
• Parties: Val Jean BARONE, Plaintiff and Appellant, v. CITY OF SAN JOSE, etc., Defendant and Respondent. Civ. 42100.

Page 836

144 Cal.Rptr. 836

79 Cal.App.3d 284

Val Jean BARONE, Plaintiff and Appellant, v. CITY OF SAN JOSE, etc., Defendant and Respondent.

Civ. 42100.

Court of Appeal, First District, Division 4, California.

March 31, 1978.

Bostwick & Rowe by Everett P. Rowe, San Jose, for plaintiff and appellant.

Hoge, Fenton, Jones & Appel, Inc. by Philip Young, San Jose, for defendant and respondent.

WILSON, ^* Associate Justice.

Plaintiff-appellant Val Jean Barone (hereafter appellant) appeals from a judgment in Santa Clara County Superior Court in favor of defendant-respondent City of San Jose (hereafter the City) following the court's order granting the City's motion for summary judgment in appellant's action for personal injuries sustained when she fell on a public sidewalk.

On February 11, 1976, appellant was delivering telephone directories to residences in the San Jose area. She was carrying two of the books in front of her while walking down a public sidewalk on Hibiscus Lane in the City of San Jose. The weather was clear and dry that morning and appellant was looking straight ahead. As she was walking forward, she tripped over a crack, which had resulted in one part of the sidewalk being slightly raised, and fell, sustaining injuries.

After taking appellant's deposition, the City noticed a motion for summary judgment. In support of its motion, the City filed an excerpt from appellant's deposition, the declaration of its attorney, Philip Young, and copies of photographs of the sidewalk crack which was the subject of controversy. ¹ The trial court granted the motion, citing Ness v. City of San Diego (1956) 144 Cal.App.2d 668, 301 P.2d 410; Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 309 P.2d 125.

Government Code section 835, ² insofar as it is here applicable, provides that a public entity shall be liable for dangerous conditions on public property if (1) the plaintiff establishes that the property was in dangerous condition at the time of the injury, the injury was proximately caused by the condition and the condition created a reasonably foreseeable risk of the kind of injury incurred, and (2) the public entity had either actual or constructive notice a sufficient time prior to the injury to have taken measures to protect against the condition.

The cases cited by the trial court in its memorandum indicate that the court found the defect in the sidewalk to be "trivial" as a matter of law. This doctrine has its legislative embodiment in section 830.2, which provides: "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 that it would be used."

Appellant argues that the court erred in granting summary judgment, contending that the doctrine of trivial defects applies only where it is ought to charge the public entity with constructive, as distinguished from actual, notice of the dangerous condition, and therefore summary judgment in this case was improper because the affidavits submitted left open the possibility that the City had actual notice of the condition in question.

The City, on the other hand, contends that the concept of triviality is significant both in determining whether a claimed defect is in fact dangerous and in determining whether the public entity should be charged with constructive notice of the alleged dangerous condition. It argues that in order to prevail the plaintiff must prove the affirmative of both of these issues and, therefore, if the trial court was correct in concluding that, as a matter of law, the defect was too trivial to be dangerous, the order granting summary judgment must be affirmed and we need not reach the issue of notice.

A number of California cases recognize a dual significance attaching to the concept of triviality, similar to that for which respondent contends. (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 256 P.2d 977; Gentekos v. City & County of S. F. (1958) 163 Cal.App.2d 691, 696-697, 329 P.2d 943.) However, the distinction between the two uses to be made of this doctrine is not always clear and has not always been consistently observed.

In Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 54 P.2d 725, it was assumed that a sidewalk crack which produced a difference in elevation of approximately one to one and one-half inches was a dangerous condition. However, the existence of such a defect for several months, without more, was held insufficient, as a matter of law, to charge the city with constructive notice of the dangerous character of this condition.

Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990, involved a difference in sidewalk elevation of about three-quarters of an inch, at maximum, which had existed for six years. Four persons had tripped over it and the mayor and other city officials had walked frequently, but apparently uneventfully, over this portion of the sidewalk. There was no showing that the city had actual notice of any untoward occurrences. The court used language in its opinion which suggested that it considered the defect too trivial to present a substantial risk of injury (pp. 165-166, 69 P.2d 990), but did not expressly so hold. Instead, relying on Nicholson, supra, it held that the defect, even though it had existed for six years, was too trivial to impart constructive notice.

Both Whiting and, to a lesser extent, Nicholson, have been cited for the proposition that a claimed defect was too trivial to impart constructive notice. (Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 71 P.2d 854; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 70 P.2d 533; Barrett v. City of Claremont, supra, 41 Cal.2d 70.) However, Whiting has been frequently, and Nicholson occasionally, cited for the proposition that a defect is too trivial, as a matter of law, to constitute a dangerous condition.

Although a number of cases which set forth this latter rule appear to misapprehend the actual holding in Whiting, nevertheless, the rule itself is well established and has been consistently applied. (Ness v. City of San Diego, supra, 144 Cal.App.2d 668, 301 P.2d 410; Beck v. City of Palo Alto, supra, 150 Cal.App.2d 39, 309 P.2d 125; Barrett v. City of Claremont, supra, 41 Cal.2d 70, 256 P.2d 977; Sischo v. City of Los Banos (1940) 37 Cal.App.2d 717, 100 P.2d 305; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 139 Cal.Rptr. 876.) The development of this rule constitutes a recognition of the following language from Whiting : "It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise, the city could be held liable upon a showing of a trivial defect." (Id., 9 Cal.2d at p. 165, 69 P.2d at p. 991.)

In some cases in which a particular defect has been held, as a matter of law, not to constitute a dangerous condition because of its "minor, trivial or insignificant nature," the courts have used language, such as a reference to its inconspicuous appearance or location, which would be more appropriate to a discussion of constructive notice. However, this apparent overlap can be readily understood when it is recognized that the concept of "dangerousness," as affected by the alleged trivial nature of the defect, is interwoven with the concept of notice.

Section 835, subdivision (b) requires, as a condition of...