Miller v. Pac. Gas & Elec. Co.

• Docket Number: A165638
• Decision Date: 27 November 2023
• Citation: Miller v. Pac. Gas & Elec. Co., 316 Cal.Rptr.3d 183 (Cal. App. 2023)
• Parties: Crista MILLER, Plaintiff and Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY, et al., Defendants and Respondents.
• Court: California Court of Appeals

316 Cal.Rptr.3d 183

Crista MILLER, Plaintiff and Appellant,

v.PACIFIC GAS AND ELECTRIC COMPANY, et al., Defendants and Respondents.

A165638

Court of Appeal, First District, Division 3.

Filed November 27, 2023

Trial Court: San Francisco County Superior Court, Trial Judge: Hon. Richard B. Ulmer, Jr. (San Francisco City & County Super. Ct. No. CGC20582606)

Law Office of Nikolaus W. Reed, Nikolaus Reed, San Francisco, for Plaintiff and Appellant.

Gough & Hancook, Mark Hancock, Ventura, Gayle Gough, and Peter Messrobian, for Defendants and Respondents Pacific Gas and Electric Company, et al.

Phillips Spallas & Angstadt, Robert Phillips, San Francisco, Michael Halvorsen, Los Angeles, and Matthew Gardner, for Defendants and Respondents, Hip Sen Benevolent Association

Petrou, J.

Crista Miller tripped on a vertical misalignment of less than one inch between the metal plate covering an underground utility vault owned by Pacific Gas and Electric Company (PG&E) and the surrounding sidewalk adjacent to property owned by Hip Sen Benevolent Association (Hip Sen), causing her to fall and hurt her ankle. The trial court granted summary judgment, ruling that the lawsuit was barred by the trivial defect doctrine. We affirm.

Background

The Incident

At 11:30 p.m. on Saturday, February 16, 2019, Miller and her husband were walking on Washington Street toward Grant Street in San Francisco’s Chinatown on what they described as a "steep downhill slope."

It was a typical Saturday evening in the neighborhood. It had drizzled earlier in the evening and the night sky was dark, foggy, and misty. The sidewalk was wet and crowded with people. Miller did not recall it " ‘feel[ing] dark’ " as the sidewalk was in an urban setting with lights from multiple sources, including streetlights and store lights.

Miller tripped on the vertical misalignment between a metal plate covering an underground utility vault owned by PG&E and the surrounding sidewalk adjacent to property owned by Hip Sen. While walking downhill, she stepped with her left foot on the rectangular, metal plate cover near the center of the sidewalk. A toe on her left foot contacted the differential at the left, downhill side of the metal plate, and she fell forward and landed on the sidewalk.

The parties agree the height differential between the sidewalk edge and metal plate was less than one inch. The metal plate covering the utility vault was made of ordinary, diamond-plated metal. It was "neither ‘super smooth’ nor ‘strange’ in any way," but it was wet from the earlier rainfall. Miller asserted she did not see the height differential before she tripped because she was going downhill and therefore looking some eight to ten feet ahead.

No History of Tripping Accidents at the Location

The City and County of San Francisco (the City)’s 311 call system is the central repository for complaints and service requests concerning sidewalks. A City employee found no complaints or service requests concerning the incident location between January 1, 2010 and February 16, 2019 (date of incident). Hip Sen was also not aware of any prior tripping incidents having occurred on the sidewalk adjacent to its property at any time.

City Repair Guidelines

The City’s Department of Public Works has guidelines concerning the repair of sidewalk defects to improve accessibility within the area of a sidewalk most traveled by pedestrians: Good Neighbor Guidelines (Order No. 177,526) and Guidelines for Inspection of Sidewalk Defects (Order No. 178,884). Priority repairs include sidewalk defects of vertical displacement, meaning the sidewalk pavement or curb is displaced by a half-inch or more from the abutting pavement or curb.

After Miller’s fall, a City inspector evaluated the incident location in July 2019 and issued notices requiring PG&E and Hip Sen to repair the vertical misalignment of the sidewalk and metal plate cover. The repairs were completed.

Motions for Summary Judgment

Miller sued PG&E and Hip Sen, alleging general negligence and premises liability (a theory of negligence) against both defendants. The gravamen of the complaint was that defendants had allowed a dangerous condition - the vertical misalignment of the metal plate cover and surrounding sidewalk - to exist.

PG&E and Hip Sen filed separate motions for summary judgment on the basis that the vertical misalignment did not constitute a dangerous condition because it was trivial in nature and size and there were no other factors that raised a question of fact regarding the triviality of the defect. In opposition, Miller argued there was a triable issue of fact based on evidence that the vertical alignment was more than one-half inch in size and based on the City’s guidelines regarding repairs. Miller further argued the circumstances surrounding her accident raised a triable issue as to the existence of a dangerous condition despite its trivial nature and size.

The trial court granted the motions based on the trivial defect doctrine. The court found defendants had met their initial burden of demonstrating the height differential between the sidewalk and metal plate cover was trivial in nature and therefore did not constitute a dangerous condition requiring repair or warning. It further found Miller had failed to meet her burden of showing a triable issue of material fact concerning triviality. It also found no triable issue of material fact as to whether the vertical misalignment was a dangerous condition based on the City having issued notices requiring PG&E and Hip Sen to repair the sidewalk and metal plate cover. "As PG&E points out, the City’s policy is to issue Notices to Repair whenever there is a sidewalk differential of .5 inches or greater…. However, the City’s notice guidelines do not impose a legal duty to repair defective conditions under the trivial defect standard. The Court finds that sidewalk maintenance need not meet the .5-inch differential throughout the entire City in order for [defendants] to … avail [themselves] of the trivial defect doctrine."

The court entered a judgment of dismissal in favor of defendants on June 9, 2022, and this appeal ensued.

Discussion

I. Standard of Review

[1–3] We review the propriety of a grant of summary judgment de novo, "considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) As in the trial court, we first determine whether the moving party has met its initial burden to establish facts justifying judgment in its favor; if so, we then decide whether the opposing party has demonstrated the existence of a triable, material issue of fact. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630, 32 Cal. Rptr.3d 266.) "We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale." (Ibid.)

II. Vertical Misalignment Was a Trivial Defect as a Matter of Law

A. Trivial Defect Doctrine

To recover damages for either negligence or premises liability, Miller must prove defendants breached a legal duty to either repair or warn about the existence of a dangerous condition - the vertical misalignment - that allegedly caused her to trip and fall. (See Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566, 78 Cal.Rptr.3d 910 [elements of premises liability]; Ursino v. Big Boy Restaurant (1987) 192 Cal.App.3d 394, 397, 237 Cal.Rptr. 413 [elements of negligence liability].)

[4–7] It is well settled law that landowners are "not liable for damages caused by a minor, trivial or insignificant defect in property." (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, 19 Cal.Rptr.3d 254.) In the context of sidewalk defect cases, landowners "do[ ] not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard - only those defects that create a substantial risk of injury to a pedestrian using reasonable care." (Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757, 297 Cal.Rptr.3d 461 (Nunez), see Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109–1110, 250 Cal.Rptr.3d 336 (Huckey) [while the height differential of sidewalk defect "posed some risk of injury," and was evidence of a "tripping hazard," to constitute a dangerous condition the height differential and the area surrounding it must pose " ‘a substantial … risk of injury’ "].) This simple principle of law is referred to as the trivial defect doctrine - "it is not an affirmative defense but rather an aspect of duty that [a] plaintiff must plead and prove," and it applies where liability is alleged against both governmental entities and private landowners such as defendants. (Caloroso, at p. 927, 19 Cal.Rptr.3d 254.)

[8] Whether a particular sidewalk defect is trivial and nonactionable may be resolved as a matter of law using a two-step analysis. (Huckey, supra, 37 Cal. App.5th at p. 1105, 250 Cal.Rptr.3d 336 [citing cases applying two-step analysis]; see Nunez, supra, 81 Cal.App.5th at p. 758, 297 Cal.Rptr.3d 461 [accord].) First, we review the evidence of the size and nature of the defect. (Huckey, at p. 1105, 250 Cal.Rptr.3d 336.) If that analysis supports a finding of a trivial defect based on its physical characteristics, we then consider whether the defect was likely to pose a significant risk of injury because there was evidence that the conditions of the walkway surrounding the defect or the circumstances of the accident " ‘ma[de] the defect more dangerous than its size alone would suggest.’ " (Ibid.) If the evidence of addi- tional factors does not indicate the defect was sufficiently dangerous to a reasonably careful person, we deem the defect trivial as matter of law. (Id. at p. 1105, 37 Cal. App.5th 1092.)

One court of appeal has recently rejected this two-step analysis and used "a holistic...