September 22, 2023

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Building defect circumstances resulting in bodily damage are infrequently trivial, no less than within the eyes of the injured birthday celebration, however alas now and again they’re as the following case, Nunez v. Town of Redondo Seashore, 81 Cal.App.fifth 749 (2022), demonstrates.

The Nunez Case

Monica Nunez, Vice President of Finance and Accounting at a cafe chain and a part-time health trainer at a fitness center, tripped and fell on a public sidewalk in Redondo Seashore. Ms. Nunez, who was once in her forties, tripped following a gaggle run when her again foot hit a sidewalk slab that was once increased at its best possible level roughly 11/16 inches. Ms. Nunez landed on her left knee and proper arm and within the procedure fractured her kneecap and elbow.

Ms. Nunez sued the Town of Redondo Seashore for her accidents alleging reasons of motion for bad prerequisites on public belongings underneath Executive Code phase 835, nuisance underneath Executive Code phase 815.2, and failure to accomplish a compulsory accountability underneath Executive Code phase 815.6.

The Town filed a movement for abstract judgment arguing that the raised sidewalk slab was once a “trivial” defect underneath the regulation. The Town in its papers, and Nunez in her opposition, each and every integrated lay and professional declarations. A number of the declarations filed by means of the Town was once a declaration by means of Frank Contreras, the Town’s Public Works Supervisor, who mentioned that he had visited the web page after the coincidence and measured the displacement of the sidewalk slab which he mentioned ranged from 0 “to 5-Eighth of an inch, most likely a millimeter extra.”

A number of the declarations filed by means of Nunez have been declarations by means of Benjamin Monar, a forensic engineer, and Mark Burns, a senior forensic engineer on the similar company. In his declaration, Monar mentioned that the peak differential of the sidewalk slab measured from one-half inch to 9/sixteenth of an inch. Burns, in his declaration, mentioned that the sidewalk slab “introduced an abrupt top differential,” that the “minimal toe clearance of a pedestrian . . . all through customary strolling stride is roughly 0.50 to 0.60 inches,” and {that a} top differential in way over this magnitude created a considerable risk {that a} pedestrian may travel if now not conspicuous.

After taking the subject underneath submission, the Courtroom granted the Town’s movement for abstract judgment, discovering that the Town had established that the raised sidewalk slab was once trivial as a question of regulation, and that Nunez had failed to offer proof elevating a triable factor of subject material reality.

Nunez appealed.

The Enchantment

On attraction, the 2d District Courtroom of Enchantment defined {that a} public entity is also held responsible for accidents led to by means of a perilous situation on public belongings, and {that a} situation is regarded as “bad” if it “creates a considerable (as prominent from a minor, trivial or insignificant) chance of damage when such belongings or adjoining belongings is used with due care in a fashion by which it’s somewhat foreseeable that it’ll be used. ” Referred to as the “doctrine of trivial defect,” whilst typically a query of reality, a courtroom would possibly resolve {that a} defect is “trivial” as a question of regulation if the courtroom determines, “viewing the proof maximum favorable to the plaintiff . . . that the chance created by means of the situation was once of any such minor, trivial or insignificant nature in view of the encircling instances that no affordable particular person would conclude that the situation created a considerable chance of damage.”

Within the sidewalk-walkway context, defined the Courtroom of Enchantment, “[t]he choice whether or not the defect is bad as a question of regulation does now not relaxation only at the measurement of the crack within the walkway” however reasonably “[a] courtroom must come to a decision whether or not a defect is also bad most effective after taking into account the entire instances surrounding the coincidence that may make the defect extra bad than its measurement by myself would counsel” together with “whether or not the walkway had any damaged items or jagged edges and different prerequisites of the walkway surrounding the defect, similar to whether or not there was once particles, grease or water concealing the defect, in addition to whether or not the coincidence came about at evening in an unlighted house or every other situation obstructed a pedestrian’s view of the defect.”

Briefly, defined the Courtroom of Enchantment, figuring out whether or not a defect is trivial as a question of regulation comes to two steps:

First, we assessment proof of the “`kind and measurement of the defect.’” If that evaluation finds a trivial defect, we then believe “`proof of any further components [bearing on whether the defect presented a substantial risk of injury]. If those further components don’t point out the defect was once sufficiently bad to a somewhat cautious particular person,’” then we can “`deem the defect trivial as a question of regulation.’”

And, right here, held the Courtroom of Enchantment, when seen within the mild maximum favorable to Nunez, the proof displays that the peak differential of the sidewalk slab was once at its best possible level slightly below 3/4 of an inch. On the other hand, defined the Courtroom, “[c]ourts constantly have held that – within the absence of irritating components – a sidewalk offset of this measurement (and better) [3/4 of an inch to one and 1/2 inches] is a trivial defect as a question of regulation. Additionally, defined the Courtroom, the truth that the Town would try to restore sidewalk elevation differentials of one/2 inch or extra does now not create a triable factor of reality as a result of “the Town does now not have an obligation to offer protection to pedestrians from each sidewalk defect that may pose a tripping danger – most effective the ones defects that create a considerable chance of damage to a pedestrian the use of affordable care.”


So there you’ve it. Now not all development defects on public belongings give upward thrust to a declare for bad prerequisites on public belongings. If a defect is minor, trivial or insignificant, the courtroom, viewing the proof within the mild maximum favorable to the plaintiff, can in finding that the defect is trivial as a question of regulation.