Gluck v. Santa Monica

Filed 8/22/07 Gluck v. Santa Monica CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, James A. Bascue, Judge. Affirmed.

Law Offices of Eric Bryan Seuthe & Associates and Eric Bryan Seuthe for Plaintiff and Appellant.

Marsha Jones Moutrie, City Attorney, and Anthony P. Serritella, Deputy City Attorney, for Defendant and Respondent.

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Leslie Gluck was walking along a Santa Monica sidewalk when he caught his left foot on a brick and fell, injuring his hand. Gluck sued the City of Santa Monica for premises liability, alleging that the brick constituted a dangerous condition. The City answered, conducted discovery, then moved for summary judgment on the ground that the brick was a trivial defect, not a dangerous condition. Over Glucks opposition, the trial court granted the motion and entered judgment in favor of the City. Gluck appeals. We affirm.

DISCUSSION

Gluck contends the City failed to meet its burden of proof because it did not present sufficient evidence to establish the uneven brick constituted a trivial defect. More specifically, Gluck claims that all the City offered with respect to the characteristics of the defect at issue were three imprecise photographs. We disagree.

A.

This is the evidence offered by the City in support of its motion for summary judgment (it is undisputed that the fall occurred on a mid-block stretch of brick sidewalk between 822 and 828 Seventh Street):

1. Three photographs (Exhibits 1, 2, and 3 to the transcript of Glucks deposition) show a southbound view of a stretch of brick-paved sidewalk with a fence and hedge to the right, a grass parkway to the left (on the street side of the sidewalk). Exhibits 2 and 3 show one slightly raised brick adjacent to the parkway (that is, the brick closest to the grass).

2. A declaration from the Citys Liability Claims Adjuster in its Risk Management Division explains that, based on his search of all relevant records, the City never received any form of complaint or notice regarding the existence [of] any raised bricks on the sidewalk where . . . Gluck . . . fell, and that the City was not aware of any problem regarding that stretch of sidewalk.

3. A declaration from the Citys Senior Public Works Inspector in its Environmental and Public Works Management Department, Streets Division, explains that the stretch of concrete brick sidewalk was installed in December 2000, that his Department had never received any complaints about it, that he inspected the area after Glucks fall (and also examined the three photographs) and did not find the raised brick that Gluck claims to have tripped on or over.

4. Glucks testimony at his deposition establishes that he was walking on the left side of the sidewalk, closer to the grass than to the fence, when his left foot got caught on something and he fell forward. Before his fall, he noticed the change from ordinary sidewalk to brick sidewalk and was walking carefully. The photographs marked as Exhibits 2 and 3 show the raised brick that caused his fall.

B.

A public entity may be liable for injuries caused by a dangerous condition on its property. (Gov. Code, 835.)[1] A dangerous condition is one that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when the property is used with due care in its intended manner. ( 830, subd. (a); Mathews v. City of Cerritos(1992) 2 Cal.App.4th 1380, 1384.) A defect is trivial as a matter of law if it is too minor or insignificant to pose a substantial risk of injury, which can be shown by such circumstances as the size and location of the defect, lighting conditions, other accidents, and similar factors. (Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 365-367; Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 291.) There is no hard and fast rule about the type of proof required.

We reject Glucks contention that the Citys evidence was insufficient because the City failed to offer any measurements of the defect, any evidence concerning the nature and characteristics of the subject area, or any description of the surrounding area. The pictures and Glucks description of his fall adequately show a single slightly raised brick at the grassy edge of a brick-paved sidewalk and thus met the Citys initial burden of showing that there was no dangerous condition. We have examined the photographs and (as did the trial court) can see for ourselves that, by any definition, this defect was insignificant. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928 [no expert testimony needed to determine if defect is trivial.)

C.

Because the City met its initial burden of proof by showing there was no dangerous condition, it was up to Gluck to present evidence creating a triable issue of fact about the defect -- and that he failed to do. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Indeed, the only evidence offered by Gluck was a declaration by an expert, Brad P. Avrit, a civil engineer, who stated that -- using only the photographs -- it was his opinion that the vertical height differential between adjacent pavers and the offending brick was a maximum of one and one-half inches (which was most likely created by the growth and expansion of tree roots in the ground directly under the sidewalk). In Avrits view, the raised brick constituted a dangerous condition. The trial court correctly excluded Avrits declaration on the ground that it lacked foundation, presumably because Avrit had not visited the scene or actually measured the height differential or reviewed the Citys records vis--vis its maintenance efforts or anything else. (Caloroso v. Hathaway, supra, 122 Cal.App.4th at p. 928 [it is well within the common knowledge of judges and jurors to determine what type of defect in a sidewalk is dangerous].)

Summary judgment was proper because there was no dangerous condition.

DISPOSITION

The judgment is affirmed. The City is entitled to its costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All section references are to the Government Code.