Barton v. Benson

Filed 6/6/06 Barton v. Benson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff was walking in the middle of a sidewalk on defendants' property when she tripped over an elevation in one of the concrete slabs of that sidewalk. The difference in elevation was 0.7 of an inch at the center of the sidewalk. The trial court granted defendants summary judgment on the ground that the defect is trivial. Plaintiff claims the defect presents a substantial hazard because one of the slabs is slanted in relation to the other, creating a step height differential between a pedestrian's right and left foot.

We agree with the trial court that a step height differential does not make the defect substantial. We affirm.

FACTS

On January 17, 2004, at approximately 11:00 a.m., Alice Barton left her car at the car wash and took a walk. She was walking at a "nice brisk pace for exercise." She was in the middle of a sidewalk on property owned by John and Patricia Benson where she noticed a difference in elevation between abutting sections of the sidewalk. She believed the elevation was the same height across the sidewalk. She did not notice the difference in elevation was not uniform. She could not walk around the defect due to landscaping. The defect was most likely partially shaded at the time of the accident.

Barton slowed down. She stepped over the rise in the sidewalk with her right foot. Believing she had successfully negotiated the obstacle, she looked away. As she was bringing her left foot forward, however, the toe of her shoe caught the upper edge of the raised slab. She fell and injured herself.

The Bensons' expert measured the sidewalk. He found it to be five feet, five inches wide. He also measured the difference in height between the two sidewalk sections. He found the difference to be approximately one inch at one and a half feet from the left side of the sidewalk, and zero as measured from the right side of the sidewalk. Barton's expert determined the rise at the center of the sidewalk to be 0.7 inches.

DISCUSSION

Summary judgment is properly granted only if all papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court must draw all reasonable inferences from the evidence set forth in the papers except where such references are contradicted by other inferences or evidence which raise a triable issue of fact. (Ibid.) In examining the supporting and opposing papers, the moving party's affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

Here the question is whether the defect in the sidewalk is trivial as a matter of law. A property owner, whether public or private, is not liable for a trivial defect in a sidewalk. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Defects consisting of a difference in elevation of one inch or less have been held to be trivial as a matter of law in the absence of aggravating circumstances. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.) Where the defect goes beyond a difference in elevation between adjoining slabs and consists of potholes, jagged breaks and cracks, or contains substances such as grease and oil, courts have found the defect not to be trivial as a matter of law. (Ibid.)

Here it is undisputed that the difference in height between slabs in the middle of the sidewalk where Barton was walking is 0.7 of an inch. It is also undisputed that there were no potholes, jagged breaks or cracks or substances such as grease or oil. Nevertheless, Barton claims the slant of the sidewalk is an aggravating factor that prevents the defect from being deemed trivial. The parties agree that no case has considered the slant of the sidewalk in determining whether a defect is trivial.

Barton argues that where, as here, one of the slabs is slanted in relation to the other, it presents a special problem for a pedestrian. A pedestrian must not only step to a higher level to negotiate the defect, she must step to a different higher level with each foot. This, Barton believes, creates a greater danger than where the height differential is constant across the sidewalk.

The trial court calculated the height differential on the sidewalk between Barton's feet to be one-eighth of an inch. This calculation was based on the assumption that the space between the center lines of Barton's feet as she walked was six inches. Barton claims the calculation should be based on the outside of Barton's shoes.

This, she believes, would be between 13 and 17 inches. Under this assumption the step height differential would be approximately one-third of an inch.

Even assuming a step height differential of one-third of an inch, Barton is not helped. A third of an inch step height differential over a span of 17 inches is not so significant as to make a 0.7 inch rise a substantial hazard. Such hazards are within the ordinary experience of anyone who walks on a sidewalk.

Barton's reliance on Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, is misplaced. There plaintiff tripped over a reinforcement bar (rebar) protruding one-fourth of an inch above a parking abutment. The parking abutment was composed of a series of concrete tire stops placed in parallel lines. The parallel lines were 36 inches apart and the area between the lines was filled with asphaltic concrete. Rebars driven into the ground held the tire stops in place. The trial court held the defect was trivial. The Court of Appeal reversed. In reversing, the court stated: "Unlike sidewalk cases, where the planes are horizontal, a protrusion such as a piece of metal rebar located in an area where foot traffic occurs poses a greater danger, especially where, as here, persons must step up from the plane they are walking on to a higher plane in order to continue on their route." (Id. at p. 270.)

Dolquist distinguished its case from cases involving sidewalks, such as this case. The hazards of stepping onto a parking abutment are simply not comparable to the hazards of stepping over a sidewalk differential of less than an inch, even if a step height differential is included.

Barton's reliance on expert opinion is also misplaced. Barton's expert declared that the configuration of the defect makes it "extraordinarily dangerous" for pedestrians; that a pedestrian is not likely to appreciate a subtle change in elevation between her right and left foot; and that persons walking on the sidewalk would expect the defect to be uniform.

The Bensons objected to the expert's declaration on the ground that the court should independently determine whether the defect is trivial, and no expert opinion is required. The trial court sustained the objection. Barton's opening brief does not argue that the trial court erred in sustaining the objection. Barton has waived the issue on appeal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, pp. 647-648.) In any event, we agree with the trial court, no expert is necessary to decide whether a sidewalk defect is trivial. (Caloroso v. Hathaway, supra, 122 Cal.App.4th at p. 928 ["[T]here is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous." (Ibid., quoting Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 732.)].)

The judgment is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Douglas Hilton, Judge

Superior Court County of San Luis Obispo

______________________________

John F. Hodges and James M. Duenow for Plaintiff and Appellant.

Henderson & Gorgeson, Jay M. Gorgeson and Millard F. Ingraham for Defendants and Respondents.

Hall, Hieatt & Connely, Stephanie A. Bowen and Clayton U. Hall for County of San Luis Obispo as Amicus Curiae on behalf of Defendants and Respondents.

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