Fielder v. City of Glendale

• Decision Date: 14 July 1977
• Court: California Court of Appeals Court of Appeals
• Parties: Nancy Ann FIELDER, Plaintiff and Respondent, v. CITY OF GLENDALE, Defendant and Appellant. Civ. 49638.

Page 876

139 Cal.Rptr. 876

71 Cal.App.3d 719

Nancy Ann FIELDER, Plaintiff and Respondent, v. CITY OF GLENDALE, Defendant and Appellant.

Civ. 49638.

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

July 14, 1977.

Hearing Denied Sept. 15, 1977.

James A. Owen, Los Angeles, for plaintiff and respondent.

Frank R. Manzano, City Atty., for defendant and appellant.

KINGSLEY, Acting Presiding Justice.

Defendant appeals from the judgment for the plaintiff. The judgment is reversed.

On December 21, 1973, the plaintiff, Nancy Ann Fielder, age 79, was shopping in a heavily traveled commercial district of the City of Glendale. As she was proceeding southbound on the west side of Brand Boulevard near the intersection of Wilson Avenue, she tripped on the raised edge of a segment of the sidewalk. The plaintiff suffered a fractured femur as a result of her fall. Plaintiff testified that she had been shopping in this same area several times in the past.

Jack Cotter, plaintiff's witness, testified that approximately two months after the date of the injury, the depression in the sidewalk, at the scene of the accident, measured about 3/4 of an inch at its deepest point. This point was located about 7 or 8 feet from the side of the adjacent building. Mr. Cotter further testified that the sidewalk depression tapered from its 3/4 inch maximum depth to a negligible height at the base of the wall of the adjacent building. However, when the witness was shown a photograph of the sidewalk which had been taken with a measuring tape inserted into the deepest part of the depression, he testified that the height of the depression appeared to be nearer to half an inch. On redirect examination, Mr. Cotter stated that he had been present when the photograph had been taken and, at that time, it had been his opinion that the depression had measured 3/4 of an inch.

The evidence also indicated that the sidewalk was approximately 15 feet wide and that the plaintiff had been walking along about four or five feet from the side of the adjacent building.

It therefore appears that the plaintiff did not trip at the point where the depression was its greatest.

Plaintiff's grandson, Mr. Larry Moore, testified that he had gone to see the sidewalk shortly after the accident and that the highest point of elevation of the adjoining slabs was approximately 1 inch. Mr. Moore also testified that within the five feet adjacent to the building the depression ranged between 1/4 and 3/4 of an inch. Mr. Charles Turnbow, an expert witness in the field of safety engineering, testified that, '. . . the apparent change in elevation between the two abutting sections of the sidewalk was sufficient (sic) high to constitute a hazard to a pedestrian attempting to negotiate the area.' He further stated that elevations greater than 1/2 of an inch would present a definite hazard to a pedestrian and that an elevation of 3/4 of inch would represent a very significant hazard.

Appellant alleges that the trial court improperly allowed the jury to find, as a matter of fact, that the 'defect' in the sidewalk could be found to constitute a dangerous condition. Instead, appellant contends that the 'defect' was minor and trivial and should have been found, as a matter of law, not to have constituted a dangerous condition. We agree with appellant's contention.

Therefore, we need not reach appellant's second contention--even if the 'defect' is assumed to be dangerous, the city did not have actual or constructive knowledge of the dangerous condition of the sidewalk so as to render it liable.

Defendant's purported liability was predicated upon sections 835, ¹ 830 ² and 830.2 OF THE CALIFORNIA GOVERNMENT CODE³. These sections and their earlier counterparts have led to the currently 'conflicting' authority in California on the topic of when a 'defect' in a public sidewalk constitutes a dangerous condition as a matter of law.

On the same basic set of facts different courts have reached diametrically opposite conclusions. Furthermore, many of these courts have failed to offer anything but the barest of explanation of the reasons behind their decisions.

In support of its allegation that the depression in the sidewalk was not dangerous as a matter of law the appellant cites the case of Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990. In that case the plaintiff sued the city to recover damages for injuries occasioned by a fall when she caught the toe of her shoe in the upraised edge of a cement square of the sidewalk. The record indicated that the highest point of the rise was about 3/4 of an inch and that it extended for several feet across the width of the walk. On these facts the court stated (at p. 165, 69 P.2d at p. 991) that, '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.' (See also Graves v. Roman (1952) 113 Cal.App.2d 584, 585--586, 248 P.2d 508.)

Furthermore the court stated (at p. 165, 69 P.2d at p. 991) that, 'In the present case the gradual rise from nothing to three-quarters of an inch in the pavement had existed for many years in the same condition and in a much traveled portion of the business section of the city. Many people walked daily over the sidewalk at that point. The defect was plainly visible. Its existence was common knowledge in the community. The plaintiff herself knew of it. She tripped over it in the daytime while she was walking toward the exposed side of the rise, without anything to obstruct her vision of the sidewalk area. She had good eyesight, was an excellent walker and frequently walked several miles in a day.'

Thus, the court stated (at p. 166, 69 P.2d at p. 991) that, as a matter of law, '. . . the defect in the sidewalk in question was a minor defect; that no injury would ordinarily be suffered therefrom when ordinary care was exercised in using the sidewalk. Many thousands of people, including numerous city officials, had passed over this defect during the five years of its existence and no one had heretofore suffered from it to the extent of seeking redress against the city. The city is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident therefrom.'

The facts in Whiting, supra, 9 Cal.2d 163, 69 P.2d 990, appear to be nearly identical with those in our case. In each case the 'defect' consisted of the horizontal nonalignment of two slabs of the sidewalk and in each case the depression measured about 3/4 of an inch. It should be noted that the court in Whiting was able to find, as a matter of law, that the 'defect' in the sidewalk was not a 'dangerous condition,' even though, four other people had stumbled on the same spot during the five years preceding the plaintiff's accident.

Appellant further presents the case of Barrett v. City of Claremont (1953) 41 Cal.2d 70, 256 P.2d 977, where the court was able to conclude that, as a matter of law, a ridge of 1/2 of an inch above the surface of the sidewalk was minor and trivial and that no injury would be sustained by one exercising reasonable care in the use of the sidewalk.

The court stated (at p. 73, 256 P.2d at p. 979) that, 'Growing out of the difficulty of maintaining heavily traveled surfaces in perfect condition is the practical recognition that minor defects inevitably occur, both in construction and maintenance, and that their continued existence is not unreasonable. In such case, irrespective of the question of notice of the condition, no liability may result. (Graves v. Roman (1952) 113 Cal.App.2d 584, 586--587, 248 P.2d 508; Robson v. Union Pac. R.R. Co. (1945) 70 Cal.App.2d 759, 761--762, 161 P.2d 821; Clark v. Foster's Inc. (1942) 51 Cal.App.2d 411, 414, 125 P.2d 60; Sischo v. City of Los Banos (1940) 37 Cal.App.2d 717, 718, 100 P.2d 305.)'

Moreover, the court stated that many past decisions ⁴ had held that defects of a greater magnitude were minor and trivial as a matter of law.

The court in Barrett, supra, 41 Cal.2d 70, 256 P.2d 977, then proceeded to distinguish every case ⁵ upon which the respondent had relied for his contention that the issue of dangerousness was properly a question of fact for the jury. The court found that in these decisions either the outright nature of the defect was not trivial or minor or that the courts, in these cases, were never faced with the question of whether the defect was dangerous as a matter of law. Furthermore, in none of these cases was the 'defect' of the same nature as that which was involved in Barrett, supra, 41 Cal.2d 70, 256 P.2d 977, or in our present case. None of these cases involved the 'simple' situation where two adjoining slabs of a sidewalk were unaligned horizontally by a difference of only about 3/4 of an inch.

The appellant also cited the case of Ness v. City of San Diego, 144 Cal.App.2d 668, 301 P.2d 410 (1956) where there was a 7/8 of an inch variation between two slabs of the sidewalk where plaintiff tripped. There the court said (at p. 673, 301 P.2d at p. 413) that, 'On the authority of the Whiting, (supra,) and Balmer (22 Cal.App.2d 529, 71 P.2d 854 (1937)) cases we hold that an even break between two adjoining slabs of a concrete walk of seven-eighths of an inch elevation . . . is but a trivial defect and without danger to pedestrians walking thereabouts with due care. . . . The conclusion is inescapable that the evidence cannot, as a matter of law, be held sufficient...