Whether A Defect is Trivial Is Not A Trivial Matter
by Bob Hunt
Thursday, June 28, 2012
That, in a nutshell, is the essence of a recently-decided case (Cadam v. Somerset Gardens Townhouse HOA et al.) in California's Second District Court of Appeal. The ruling is instructive and will no doubt be welcomed by those who are charged with maintaining sidewalks, walkways, and the like..
Barbara Cadam leased a unit in Somerset Gardens, a development consisting of 93 townhomes. Although it was her normal practice to enter her townhome through the garage, one day in October of 2006, Ms. Cadam had occasion to use the walkway. She had engaged one of the gardeners in a conversation about a sprinkler problem. At the end of the conversation, she headed away on the walkway; but when the gardener said something more, she turned to look at him. "At that point, her right foot caught in a walkway separation. Cadam fell forward on her hands, shoulder, elbow, and right knee." As she described it, "I kind of looked [at the gardener], and my right foot caught, I hit with … the toe of my right shoe, and I started to go forward, and I tried to catch myself with my left foot, and it also hit this rise in the cement, and I went down…"
According to the court record, she was wearing high heels at the time. "The cement walkway was clean and dry and it was a bright day. As agreed by the parties, the difference in height between the two walkway segments was between three-fourths and seven-eighths inch."
The injuries to her hands, wrists, elbows, and right knee required the treatment described earlier. She was 63 at the time of the accident. Her hand injuries have caused permanent nerve damage and disability.
Ms. Cadam sued the homeowner association, the management company, and the builders for premises liability and negligence. (At the beginning of the trial she settled with Inland Pacific Builders for $155,000, and they were dismissed from the suit.) The jury decided in her favor and awarded $1,336,197 damages. It found that the HOA and the management company were each 50 percent responsible.
The defendants filed a motion for a "judgment notwithstanding verdict", which the trial court granted. It ruled that "no reasonable person could find this was not a trivial defect looking at the photographs….the height, [and] the surrounding circumstances. Cadam appealed.
The appellate court pointed out that "It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property." It referred to the principle as the "trivial defect defense" and went on to say, "Persons who maintain walkways – whether public or private – are not required to maintain them in absolutely perfect condition… Moreover, what constitutes a minor defect may be a question of law." It cited decisions "finding trivial defects ranging from three-fourths inch to one and one-half inches."
The court also noted that, in this case, "photographs of the separation do not reflect a jagged separation, shadows, or debris obscuring the separation." "There were no protrusions from the separation and other persons had not fallen there. "Moreover, Cadam testified that she did not see the separation because she 'wasn't looking at it.'"
The appellate court asserted that, on their review of the evidence, "the walkway defect here was trivial as a matter of law." As such, the property owners had no duty to repair it. The appellate court upheld the trial court's ruling and found in favor of the defendants.
A lot of this might strike the reader as just plain common sense. I would agree. Refreshing isn't it?
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