Judge: Richard Y. Lee, Case: 30-2019-01121047, Date: 2022-10-13 Tentative Ruling

Defendant Bank of America, N.A. (“Defendant” or “BofA”) seeks summary judgment on Plaintiffs Ramesh Bhatt (“RAMESH”) and Minaxi Ramesh Bhatt’s (“MINAXI”) (collectively “Plaintiffs”) Complaint which asserts two causes of action for premises liability and general negligence against it.

Plaintiffs allege that RAMESH tripped and fell while walking on a sidewalk at or near 160 E. Yorba Linda Boulevard in the City of Placentia (hereinafter the “Incident”). Plaintiffs allege that Defendants, including BofA, negligently owned, operated and maintained the premises where the Incident occurred in a dangerous and defective condition by designing, creating, building, maintaining, and controlling the walkway area where the Incident occurred “in such a manner as to create a dangerous condition for users including having a potential tripping and/or fall hazard as well as a variance offset in the walkway that was more than trivial” and further allege that Defendants “failed to maintain the adjacent location of the variance including the trees to allow the variance to be created and/or caused.” (See Complaint, p. 5.)

Defendant BofA seeks summary judgment on the grounds it owed no duty of care to Plaintiffs because: (1) the condition involved in the incident was trivial as a matter of law since the height differential of the sidewalk involved in the Incident was less than one inch; and (2) the circumstances surrounding the Incident did not present a substantial danger.

Trivial Defect Doctrine.

The trivial defect doctrine shields a defendant from liability where conditions on the “property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circumstances ... 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.’” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104.)

“It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388.) “Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. (Ibid.) ‘The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.’... Moreover, what constitutes a minor defect may be a question of law.” (Id. at 388-39.)

“In appropriate cases, the trial court may determine...whether a given walkway defect was trivial as a matter of law.” (Huckey, supra, 37 Cal.app.5th at 1104.) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (Id. at 1105.)

“In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect...The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.” (Huckey, supra, 37 Cal.App.5th at 1105.) “These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian's view of the defect, the plaintiff's knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. [Citation omitted.] In sum, ‘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.’” (Id.)

“The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. ‘First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law ....’” (Huckey, supra, 37 Cal.App.5th at 1105.)

Here, Defendant BofA contends the alleged condition at issue where the Incident occurred constitutes a trivial defect because inspection of the sidewalk and measurement of the height differential between the two panels where Plaintiffs contend the Incident occurred by Kevin Koura, a City of Placentia employee, shows that the height differential is under 1 inch and approximately 0.8-0.9 inches; and that Plaintiffs have produced no evidence to support their contention that the height differential is between 1-2 inches. (See SSUMF Nos. 12-16.) Defendant BofA contends that Courts have found that differences in height ranging from ¾ of an inch to 1½ inches are trivial as a matter of law and cites to Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1101 as legal authority.

Plaintiffs, however, dispute that the height differential is under one inch; dispute that Mr. Koura’s inspection shows a height differential of less than one inch; and dispute that they have no evidence to support their estimation that the height differential is between one to two inches. (See Response to SSUMF Nos. 13-16; see Zande Decl., Exh. 2.)

Plaintiffs produce evidence that their retained certified safety professional and expert consultant, Peter Zande, examined the sidewalk at issue and he observed the height differential to be one inch. (See PSUMF No. 7; see also Zande Decl., ¶ 6 [“The sidewalk variance where Plaintiff Ramesh Bhatt included a height differential that was one (1) inch”.])

Plaintiffs also produce evidence that Mr. Zande opined there were aggravating factors that contributed to the dangerous propensity of the sidewalk variance that caused Plaintiff RAMESH to trip and fall. These factors include: (1) chipping on the edge of the variance which created a jagged edge that was facing Plaintiff RAMESH’s direction of travel; (2) leaves, dirt, pieces of pine needle, and other debris in or around the variance; (3) a plastic joint expansion that was in between the sidewalk panels at the area of the variance that was aged and cracked resulting in a jagged edges and creating a whitish face of the variance which contributed to its difficulty to see the height differential; and (4) the variance not being visible or difficult to see for a pedestrian traveling in the same direction as Plaintiff RAMESH was at the time of the injuries even if exercising due diligence. (See PSUMF Nos. 9-12; see also Zande Decl., ¶¶ 9-12.)

Plaintiffs also produce evidence that their expert, a licensed engineer, Charles Gang, reviewed the sidewalk where the Incident occurred, and opined: (1) “the variance and uplift between the two concrete slabs constituted a dangerous condition at the time of the incident; (2) the “slabs were vertically uplifted and offset creating a dangerous trip hazard condition, and the variance was reasonably likely to cause injury”; (3) “collective risk” factors at the Incident contributed to the dangerous nature of the sidewalk variance where Plaintiff RAMESH fell; (4) the location of the sidewalk is a high traffic area; (5) the cracked expansion joint was difficult to see due to the sidewalk and rough edges, the degraded plastic expansion joint that was cracked made the variance difficult to locate, the variance and uplift were difficult to perceive due to a lack of any delineation between the two gray concrete slabs; (6) sidewalk variance had jagged edges; (7) sidewalk variance had debris including pine needles, dirt, and other debris which contributed to the sidewalk variance difficult to see and increased risk for trip and falls; (8) the positioning of the sidewalk variance made it difficult to avoid since it extended the entire width of the sidewalk forcing a walking person to encounter it and the variance was not consistent, but varied in height depending on where you were walking; and (9) visual distractions, multiple variances along the sidewalk, curvature in the walkway, sloping in the walkway, shadowing, and surrounding trees and uplifting. (See PSUMF Nos. 18-30; see also Gang Decl., ¶¶ 9-20.)

Mr. Gang opines that “the variance and uplift at issue was not a trivial defect and presented a significant trip hazard for pedestrians and thus constituted an unsafe and dangerous condition given the nature of the uplift, the surrounding aggravated factors discussed above, and the location of the uplift and variance in an area of high foot traffic.” (See PSUMF No. 31; see also Gang Decl., ¶ 22.)

The case cited by Defendant BofA in support of its Motion, Huckey, supra, is factually distinguishable from this case. In Huckey, the height differential at issue was undisputed and plaintiff failed to present any admissible evidence that the area surrounding the area where the incident occurred posed a “substantial risk of injury.” (Huckey, supra, 37 Cal.App.5th at 1109-110 [“To begin, it is undisputed that the height differential ranged between 9/16 of an inch to one inch, at three feet and one foot, respectively, from the far right edge of the sidewalk as plaintiff was facing or walking, and as measured ‘along the diagonal joint from the edge of the dirt, which would correspond to an area starting at 8 inches from the [right] side of the walkway.’ ‘Only the very right two feet of the deviation was greater than 3/4 of an inch.’ It is also undisputed that the height differential was at its highest at one and 7/32 inches, or 1.21875 inches, at the sidewalk's right edge. There were no broken concrete pieces or jagged concrete edges in the area of the height differential when plaintiff fell... Plaintiff's evidence shows he fell during the daytime, when it was still light outside, and the weather was dry. Plaintiff averred it was “sunny and dry” when he fell, and Valentina N. testified it was “dusky.” Plaintiff fell sometime between 3:00 p.m. and 5:00 p.m. on December 12 to 15, 2015. Thus, the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and, therefore, would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care’ at the time plaintiff fell.”].)

Here, unlike in Huckey, the height differential is disputed and Plaintiffs present evidence that the area surrounding the area where the Incident occurred could have posed a substantial risk of injury when used with due care. The Huckey court even recognized that “height differentials higher than one-half inch pose a trip hazard to pedestrians” and can constitute a dangerous condition if “the area surrounding ...posed “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Huckey, supra, 37 Cal.App.5th at 1109.

Therefore, based on the evidence above, the Court finds it cannot determine as a matter of law that the defect upon which Plaintiff tripped was trivial. “In appropriate cases, the trial court may determine...whether a given walkway defect was trivial as a matter of law...If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (See Huckey, supra, 37 Cal.App.5th at 1104-1105.)

Accordingly, for the reasons stated above, the Motion for summary judgment is DENIED.

Moving Party is to give notice.