Lacasto v. City of Santa Barbara

Filed 11/1/07 Lacasto v. City of Santa Barbara CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

In this trip-and-fall case, Audrey Lacasto appeals from the judgment entered after the trial court granted a motion for summary judgment filed by the City of Santa Barbara (City), respondent. Appellant contends that triable issues of material fact existed as to whether the City had constructive notice of the dangerous condition. We affirm.^[1]

Facts

On a sunny morning in September 2005, appellant tripped on a rise in a sidewalk maintained by City. The one and a quarter-inch rise occurred at the expansion joint between two adjoining concrete panels. One foot to the south of the maximum rise, the elevation diminished to one inch. Appellant tripped at a point between the one and a quarter-inch rise and the one inch rise. Her "toe caught on the sidewalk rise . . . , resulting in her falling to the ground." She broke her left hip.

The incident occurred in front of 126 East Carrillo Street. Appellant's trip and fall is the only such incident at this location reported to the City police department. A search of the records of the City Division of Public Works showed that, before appellant's trip and fall, the division "had never received any complaints or information regarding the condition of the area of sidewalk at or near 126 East Carrillo Street." A search of the records of the City Risk Management Division also failed to disclose any "problem involving the sidewalk area at or near 126 East Carrillo Street."

"Rick Fulmer, [the City's] Street Maintenance Manager, stated that the sidewalk defect at 126 E. Carrillo Street . . . was a hazard and should have been repaired." According to Fulmer, "a sidewalk deviation of three-fourths inch creates a hazard that should be repaired."

Near the rise in the sidewalk, a ficus tree had been planted. Fulmer opined that the rise "was caused by the tree root . . . lifting the sidewalk." The lifting had also caused a crack in the sidewalk that ran perpendicular to the rise.

Appellant's tree expert, Ted Elder, declared: "Raising of hardscape does not happen overnight but over a period of time . . . ." Elder opined that it "would have taken several years" for the tree root to grow to the point where it would cause a one and a quarter-inch rise in the sidewalk.

"For inspection of City sidewalks, the only formal program is that all City employees are charged with the duty of being on the lookout for hazards." No City employees are "charged with inspecting sidewalks for defects." "The only way [respondent] would be put on notice of a sidewalk hazard . . . would be by a citizen or City employee passing the location and reporting to one of [the City's] departments." The City "has over 500 miles of sidewalk area."

On November 6, 2000, approximately four years and ten months before appellant's fall, City tree trimmers performed maintenance on the ficus tree in question. If the tree trimmers had observed an unsafe condition in the sidewalk at that time, they should have reported it to the Risk Management Division and the Public Works Street Division. No such report was made.

The City employs four tree trimmers "who perform maintenance on over 5,500 trees a year, Monday through Friday. There are approximately 27,000 City street trees and approximately 5,000 City park trees . . . ." "The City's current system for pruning trees is based on elapsed time; over the course of a five year period, every City street and park tree should receive some type of maintenance."

Ted Elder, appellant's tree expert, opined that "the maintenance and inspection schedule utilized by the City was inadequate to guard against the type of hazard created here by the tree's root system." According to Elder, "[t]he tree should have been inspected at least every two years."

Trial Court's Ruling

The trial court concluded that "there are triable issues of fact as to whether the defect is trivial." On the other hand, the court concluded that "[t]here are no triable issues of fact . . . regarding the City's lack of notice of the defect." Relying on Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, the court rejected appellant's contention that triable issues of fact existed as to whether the City had been put on constructive notice of the defect. Because the City lacked notice, the court granted the motion for summary judgment.

Standard of Review

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., 437c, subd. (c).)

On appeal we conduct a de novo review, applying the same standard as the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) We "must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

Constructive Notice

Appellant's complaint is premised upon her claim pursuant to the California Tort Claims Act (the Act). (Gov.Code, 810 et seq.)^[2] Section 835, subdivision (b), of the Act provides that a public entity "is liable for injury caused by a dangerous condition on its property" if "[t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." Pursuant to section 835.2, subdivision (b), "A public entity had constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." "Dangerous condition" is defined as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." ( 830, subd. (a).)

Appellant concedes that "[t]here is no evidence that Respondent City had actual notice of the defective condition specifically at the 126 Carrillo Street sidewalk." Therefore, the City's liability must be predicated on constructive notice.

"[T]he city will be charged with constructive notice of substantial defects in the public sidewalk which have existed for such a length of time and are of such a conspicuous character that a reasonable inspection would have disclosed them. [Citations.]" (Peters v. City and County of San Francisco (1953) 41 Cal.2d 419, 427; see also  835.2, subd. (b).) "There are a substantial number of cases holding that, although a particular defect may have created a dangerous or defective condition, it was not so conspicuous as to give the city constructive notice of its existence. [Citations.]" (Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 698.)

One such case is Nicholson v. City of Los Angeles, supra, 5 Cal.2d 361. In Nicholson "[t]he sidewalk . . . had cracked at one of the joints between the panels. One block had tilted up so that there was a difference in grade at the break of not more, and possibly less, than an inch and a half. The plaintiff approached from . . . the high side of the break, set her heel on the edge of the break and slipped and fell . . . ." (Id., at p. 362-363.) The plaintiff believed that the break had been caused by the root of a tree. (Id., at p. 367.) The defective condition had existed for several months prior to the plaintiff's fall. (Id., at p. 363.)

Our Supreme Court assumed "that the evidence will support the finding of a dangerous and defective condition by reason of the break and elevation in the concrete surface of the sidewalk . . . ." (Nicholson v. City of Los Angeles, supra, 5 Cal.2d at p. 364.) But "there must be shown, in order to charge the city with constructive

notice . . . , some element of conspicuousness or notoriety so as to put the city authorities upon inquiry as to the existence of the defect or condition and its dangerous character." (Ibid.)  The court reasoned: "It is well settled that a municipality is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident. . . . 'It is a matter of common knowledge that no sidewalk is perfect, and that certain irregularities and inequalities in the surface of such sidewalks exist . . . in all cities.' . . . The doctrine of constructive notice cannot be so applied as to effect a change in the substantive obligations of the city." (Id., at p. 365.)

Our Supreme Court concluded that the one and a half-inch rise in the sidewalk was not sufficiently conspicuous to have put the city on constructive notice of the defect. In reaching this conclusion, the court considered that there had been "no evidence of any prior event which would put the city on inquiry as to the existence of a dangerous break at this point . . . ." (Nicholson v. City of Los Angeles, supra, 5 Cal.2d at p. 367.) The evidence, therefore, was "insufficient to sustain a finding that had the city fulfilled its duty of reasonable inspection and supervision of the streets of the city as a whole it would have had actual knowledge of the break." (Ibid.)  Accordingly, our Supreme Court reversed the trial court's judgment awarding damages to the plaintiff for injuries sustained as a result of the fall.

We have examined photographs of the sidewalk where appellant fell.^[3] They disclose that, at the location of a normal expansion joint in the sidewalk, one panel of concrete had risen slightly above the adjoining panel. The maximum rise was one and a quarter inches, less than the one and a half-inch rise in Nicholson. Where the rise was at its maximum, a crack in the sidewalk had occurred. The crack ran perpendicular from the rise to the well where the Ficus tree had been planted. Appellant tripped on the rise between the concrete panels, not on the crack. Where appellant tripped, the height of the rise was between one inch and one and a quarter inches, and there were no jagged edges, broken pieces, or debris. The edges of the adjoining panels were in good condition.

As in Nicholson, there "is no evidence of any prior event which put the city on inquiry as to the existence of a dangerous break at this point . . . ." (Nicholson v. City of Los Angeles, supra, 5 Cal.2d at p. 367.) Indeed, the City presented evidence to the effect that no such event had occurred. Based on Nicholson, in these circumstances we conclude that, as a matter of law, the defect was not so conspicuous as to have put the City on constructive notice of its dangerous condition.

Appellant faults the City for not having a formal sidewalk inspection program per se: and for not providing more frequent maintenance of its trees. But the City does have an inspection protocol: all City employees are charged with the duty of looking out for hazards and reporting them for remediation. (See ante p. 2.) "A municipality must exercise vigilance in keeping its streets safe and is bound to make reasonable inspections to that end. (Citation.)" (Peters v. City & County of San Francisco, supra, 41 Cal.2d at pp. 427-428.) But this does not mean that there must be a municipal department dedicated to sidewalk inspection. In view of the City's more than five hundred miles of sidewalks and approximately 32,000 street and park trees, it would not be reasonably practicable to impose such an onerous burden upon the City. Even if the ficus tree had been inspected every two years, as recommended by appellant's expert, it is speculative whether the sidewalk rise constituted a dangerous condition two years before appellant's fall.

Appellant contends that triable issues of material fact exist concerning the issue of constructive notice because, "on September 3, 2004, [one year before appellant's fall,] a claim was filed for a trip and fall as a result of a sidewalk height differential at 121 W. Carrillo Street - just three blocks from [appellant's] accident." Appellant omits to mention that the incident at 121 West Carrillo Street involved a "trip and fall on [a] gas company concrete cover" that was not level with the sidewalk. This incident could not have put the City on constructive notice of the rise in the sidewalk at 126 East Carrillo Street, which was caused by a tree root. Moreover, it is speculative whether this rise constituted a dangerous condition one year before appellant's fall.

Accordingly, the motion for summary judgment was properly granted.

Disposition

The judgment is affirmed. The City shall recover its costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Jeffrey C. Locke, for Appellant.

Stephen P. Wiley, City Attorney, City of Santa Barbara and Tom R. Shapiro, Assistant City Attorney, for Defendant.

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^[1]The trial court ruled that there were triable issues of fact as to whether the defect was trivial. We need not and do not comment on this ruling.

^[2]All statutory references are to the Government Code unless otherwise stated.

^[3]The photographs in Appellant's Appendix are black-and-white photocopies, some of which are poor in quality. (AA 100-106) The superior court file, on the other hand, contains color photographs that are excellent in quality. Pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial notice of the superior court file, case number 1188418.