A Trivial Case | California Construction Law Blog

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Construction defect conditions top to actual physical injury are almost never trivial, at the very least in the eyes of the wounded get together, but alas at times they are as the next situation, Nunez v. City of Redondo Beach, 81 Cal.App.5th 749 (2022), demonstrates.

The Nunez Case

Monica Nunez, Vice President of Finance and Accounting at a cafe chain and a aspect-time conditioning teacher at a health club, tripped and fell on a general public sidewalk in Redondo Seaside. Ms. Nunez, who was in her forties, tripped subsequent a group operate when her back again foot hit a sidewalk slab that was elevated at its optimum issue around 11/16 inches. Ms. Nunez landed on her remaining knee and right arm and in the process fractured her kneecap and elbow.

Ms. Nunez sued the Town of Redondo Seaside for her injuries alleging triggers of action for harmful ailments on public property under Authorities Code part 835, nuisance under Governing administration Code section 815.2, and failure to carry out a obligatory obligation below Federal government Code segment 815.6.

The Metropolis submitted a movement for summary judgment arguing that the raised sidewalk slab was a “trivial” defect under the legislation. The Town in its papers, and Nunez in her opposition, each and every incorporated lay and professional declarations. Among the declarations filed by the City was a declaration by Frank Contreras, the City’s Community Will work Manager, who stated that he had visited the site after the accident and measured the displacement of the sidewalk slab which he mentioned ranged from zero “to 5-8th of an inch, probably a millimeter a lot more.”

Amid the declarations submitted by Nunez ended up declarations by Benjamin Monar, a forensic engineer, and Mark Burns, a senior forensic engineer at the exact same agency. In his declaration, Monar stated that the height differential of the sidewalk slab calculated from one particular-50 % inch to 9/16th of an inch. Burns, in his declaration, mentioned that the sidewalk slab “presented an abrupt peak differential,” that the “minimum toe clearance of a pedestrian . . . for the duration of ordinary going for walks stride is approximately .50 to .60 inches,” and that a top differential in extra of this magnitude produced a sizeable chance that a pedestrian could vacation if not conspicuous.

Just after having the matter beneath submission, the Court docket granted the City’s motion for summary judgment, getting that the Metropolis had set up that the elevated sidewalk slab was trivial as a make any difference of legislation, and that Nunez experienced failed to existing evidence boosting a triable situation of content point.

Nunez appealed.

The Attractiveness

On attraction, the 2nd District Courtroom of Charm explained that a community entity may well be held liable for accidents brought about by a harmful condition on general public property, and that a condition is regarded “dangerous” if it “creates a considerable (as distinguished from a slight, trivial or insignificant) possibility of personal injury when these house or adjacent residence is employed with owing treatment in a manner in which it is moderately foreseeable that it will be utilised. ” Recognised as the “doctrine of trivial defect,” whilst normally a problem of reality, a court may perhaps ascertain that a defect is “trivial” as a matter of legislation if the courtroom establishes, “viewing the evidence most favorable to the plaintiff . . . that the chance made by the affliction was of these a minor, trivial or insignificant mother nature in watch of the bordering situation that no sensible human being would conclude that the problem produced a sizeable possibility of injuries.”

In the sidewalk-walkway context, spelled out the Court of Charm, “[t]he decision irrespective of whether the defect is hazardous as a make any difference of regulation does not rest only on the dimensions of the crack in the walkway” but fairly “[a] courtroom must decide regardless of whether a defect might be dangerous only after contemplating all of the conditions bordering the incident that could make the defect much more unsafe than its size by yourself would suggest” like “whether the walkway experienced any broken pieces or jagged edges and other circumstances of the walkway encompassing the defect, these kinds of as whether or not there was debris, grease or water concealing the defect, as nicely as irrespective of whether the incident occurred at evening in an unlighted space or some other condition obstructed a pedestrian’s look at of the defect.”

In limited, explained the Court docket of Attraction, pinpointing regardless of whether a defect is trivial as a matter of legislation will involve two techniques:

Initially, we critique proof of the “`type and measurement of the defect.’” If that evaluation reveals a trivial defect, we then take into account “`evidence of any supplemental variables [bearing on whether the defect presented a substantial risk of injury]. If these further variables do not suggest the defect was sufficiently hazardous to a reasonably very careful human being,’” then we will “`deem the defect trivial as a make a difference of regulation.’”

And, here, held the Courtroom of Enchantment, when viewed in the light most favorable to Nunez, the evidence displays that the peak differential of the sidewalk slab was at its maximum level just underneath 3/4 of an inch. On the other hand, defined the Court, “[c]ourts persistently have held that – in the absence of aggravating components – a sidewalk offset of this dimensions (and better) [3/4 of an inch to one and 1/2 inches] is a trivial defect as a subject of law. Also, defined the Court docket, the truth that the City would attempt to fix sidewalk elevation differentials of 1/2 inch or more does not produce a triable concern of actuality because “the Metropolis does not have a duty to safeguard pedestrians from every sidewalk defect that may well pose a tripping hazard – only people problems that create a considerable threat of injury to a pedestrian applying acceptable care.”

Conclusion

So there you have it. Not all construction flaws on general public house give rise to a claim for risky ailments on community assets. If a defect is minor, trivial or insignificant, the court docket, viewing the evidence in the gentle most favorable to the plaintiff, can find that the defect is trivial as a make any difference of regulation.