Barrett v. City of Claremont ( 1953 )

EDMONDS, J.

Mary E. Barrett sued the city of Clare-mont for damages, charging the defendant with negligence in the construction and maintenance of a public sidewalk. The injuries which she sustained resulted from a fall occurring when she tripped upon a ridge of asphaltum filler material protruding above the surface of the walk. Whether that defect was a trivial or substantial one is the principal question presented upon the appeal from the judgment against the city.

In 1938, the city constructed a sidewalk, approximately 10 feet wide, consisting of concrete slabs about 4 inches thick. A space of ½ inch, extending the entire width of the walk, was left between the slabs to accommodate changes in temperature. Although standard building practice called for filling such space with asphaltum to a height of ¾ to ½ inch below the top of contiguous slabs, the filler in the joint in question was made level with the surface of the sidewalk.

The black filler máterial readily absorbs the rays of the sun. On warm days, its internal temperature may rise to a point greatly above that of the surrounding air, causing the material to become soft. Warm weather also expands the concrete slabs, pushing the filler material up and out of the joint. People using the sidewalk step upon the small ridge created and spread the material over the sidewalk’s surface. As a result of this process, sufficient asphaltum had been expelled from the joint upon which Miss Barrett tripped to create a ridge about 5 inches wide. At the center, its highest point, the ridge was about ½ inch above the surface of the sidewalk and tapered gradually on each side to the level of the walk.

The accident occurred in the afternoon of a warm day in June. Because of a crust of dirt and other substances, the surface of the ridge appeared to be normal but the center was soft. Miss Barrett, while walking along the sidewalk, caught her toe upon the strip and fell.

The present action was commenced pursuant to the provisions of the Public Liability Act of 1923 (Stats. 1923, p. 675; 2 Deering’s Gen. Laws, Act 5619; now Gov. Code, §§ 53050-53056). Her complaint alleged that she had suffered an injury as a result of a dangerous and defective condition of the sidewalk and that the defendant city had notice of such condition but failed to remedy it. By its answer, the city denied generally the allegations of the complaint and pleaded affirmatively the defense of contributory negligence.

A jury awarded Miss Barrett damages. Motions by the city for a directed verdict, for judgment notwithstanding the verdict, and for a new trial were denied. The appeal is from the judgment entered upon the verdict.

The city takes the position that, as a matter of law, the defect must be deemed to have been a minor or trivial one. Another contention is that the trial court improperly rejected an offer of proof that the records of the city between 1940 and 1948 would disclose that, with the exception of the claim of Miss Barrett, no report had been made of an accident having occurred at that joint or at any other joint in the streets of the city.

The Public Liability Act of 1923 provides that a municipality shall be liable for injuries resulting from a dangerous or defective condition of the public streets in all cases where having notice or knowledge of the condition those persons having authority to remedy it fail, within a reasonable time, to do so. Elements essential to a recovery under this statute include proof that a dangerous condition existed and that the municipality had notice or knowledge of it. (Nicholson v. City of Los Angeles, 5 Cal.2d 361, 363 [54 P.2d 725].)

A determination of whether the defect involved is a minor or trivial one may be material to the establishment of each of these requirements. Growing out of the difficulty of maintaining heavily traveled surfaces in perfect condition is the practical recognition that minor defects inevitably occur, both in construction and maintenance, and that their continued existence is not unreasonable. In such case, irrespective of the question of notice of the condition, no liability may result. (Graves v. Roman, 113 Cal.App.2d 584, 586-587 [248 P.2d 508] ; Robson v. Union Pac. R. R. Co., 70 Cal.App.2d 759, 761-762 [161 P.2d 821] ; Clarke v. Foster’s Inc., 51 Cal.App.2d 411, 414 [125 P.2d 60] ; Sischo v. City of Los Banos, 37 Cal.App.2d 717, 718 [100 P.2d 305].)

The same problem may arise in connection with the question of notice. In many instances, the plaintiff cannot show actual notice of the condition and must rely upon the constructive notice imputed to the municipality by the passage of time. (Hook v. City of Sacramento, 118 Cal.App. 547, 553 [5 P.2d 643] ; Dawson v. Tulare Union High Sch., 98 Cal.App. 138, 142 [276 P. 424].) The theory of those decisions is that the city, had it performed its duty of conducting a reasonable inspection, would have had actual knowledge of the existence of a dangerous defect. (See Nicholson v. City of Los Angeles, supra, pp. 364-365.) If the defect is of such trivial character that it presents no element of conspicuousness or notoriety, its continued existence does not impart constructive notice to the municipality. (Whiting v. City of National City, 9 Cal.2d 163, 166 [69 P.2d 990] ; Nicholson v. City of Los Angeles, supra, pp. 367-368; Balmer v. City of Beverly Hills, 22 Cal.App.2d 529, 531 [71 P.2d 854].)

The plaintiff contends that, in any event, the question of whether the defect was trivial or substantial is one of fact, which the jury has resolved in her favor. But, as was said in Whiting v. City of National City, supra, “ [i]t is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise the city could be held liable upon a showing of a trivial defect.” (P. 165.)

Miss Barrett argues that the physical properties of the asphaltum filler material distinguish the present case from those involving trivial defects. In this connection, she relies upon Louie v. Hagstrom’s Food Stores, Inc., 81 Cal.App.2d 601 [184 P.2d 708], affirming an award of damages for injury caused by slipping upon a puddle of syrup on the floor of a grocery store. To bring herself within the rule of that case, she characterizes the ridge of asphaltum as a “sticky puddle.”

The evidence most favorable to Miss Barrett shows only that the asphaltum filler may become soft and sticky on warm days. It does not support an inference that she slipped upon the substance. Her answer to the direct inquiry of whether she had a sensation of slipping was in the negative. She stated that, as she stepped upon the ridge in such manner as to place her full weight upon her right foot, the tip of her toe “caught” or “stuck” in the substance, retarding her forward motion and throwing her off balance.

The record does not show that the small amount of asphaltum above the level of the sidewalk presented any greater danger of injury than that disclosed in other trivial defect cases. The accident occurred on one of the busiest streets of the city. Miss Barrett had traveled it many times. At its highest point, the ridge was only ½ inch above the surface of the sidewalk. Moreover, it did not rise sharply to that height but curved gradually upward from each edge toward the center, much in the same manner as a common doorsill. Many decisions hold that defects of a greater magnitude than that shown here are minor ones. (Whiting v. City of National City, supra [adjoining sidewalk panels differing in elevation ¾ inch at the highest point] ; Nicholson v. City of Los Angeles, supra [1 ½ inches difference in elevation] ; Sischo v. City of Los Banos, supra [grade in sidewalk of 58/100 inch per foot] ; Balmer v. City of Beverly Hills, supra [1 inch difference in elevation of sidewalk panels] ; Dunn v. Wagner, 22 Cal.App.2d 51, 54 [70 P.2d 498] [1 inch rise in sidewalk] ; Meyer v. City of San Rafael, 22 Cal.App.2d 46, 50 [70 P.2d 533] [adjoining sidewalk panels varying from ⅝ inch to 1⅜ inches in height].) Accordingly, the defect here concerned must be deemed to have been one within that category.

In the cases relied upon by the respondent which hold that the question of negligence is one of fact, either different circumstances were shown by the record or the question as to what constitutes a trivial defect was not discussed. (Fackrell v. City of San Diego, 26 Cal.2d 196 [157 P.2d 625, 158 A.L.R. 625] [pothole in sidewalk from 5 inches to 2 feet deep] ; Anderson v. County of Joaquin, 110 Cal.App.2d 703 [244 P.2d 75] [chuckhole 2 to 6 inches deep] ; Murphy v. County of Lake, 106 Cal.App.2d 61 [234 P.2d 712] [question of whether or not defect was a minor one not raised]; Warren v. City of Los Angeles, 91 Cal.App.2d 678 [205 P.2d 719] [hole 2 inches deep, 10 inches square, containing oil and grease]; Owen v. City of Los Angeles, 82 Cal.App.2d 933 [187 P.2d 860] [hole 9-11 inches long, 4-6 inches wide, and 2-3½ inches deep] ; Louie v. Hagstrom’s Food Stores, supra [puddle of syrup on floor, 6 to 8 inches wide] ; Maddern v. City & County of San Francisco, 74 Cal.App.2d 742 [169 P.2d 425] [depression in street 65 to 80 feet long, 10 to 12 feet wide, and 8 to 10 feet deep] ; Sheldon v. City of Los Angeles, 55 Cal.App.2d 690 [131 P.2d 874] [depression in sidewalk 1½ inches deep] ; Balkwill v. City of Stockton, 50 Cal.App.2d 661 [123 P.2d 596] [hole in sidewalk 5 inches long, 2 inches wide, and 2 inches deep] ; Allen v. City of Los Angeles, 43 Cal.App.2d 65 [110 P.2d 75] [bridge raised 2 inches above sidewalk] ; Ackers v. City of Los Angeles, 40 Cal.App.2d 50 [104 P.2d 399] [hole in sidewalk 12 inches long, 3 inches wide, and 2 inches deep] ; Hook v. City of Sacramento, supra [hole 2 feet long, 18 inches wide, and 1½ inches deep].) Barrett v. City of Sacramento, 128 Cal.App. 708 [18 P.2d 356], decided prior to the Nicholson and Whiting cases, is not in harmony with those decisions and is disapproved.

From the minor nature of the defect here concerned it must be concluded, as a matter of law, that no injury would be sustained by one exercising reasonable care in the use of the sidewalk. Accordingly, a finding of negligence on the part of the city is without support in the evidence.

The judgment is reversed with directions to the trial court to grant the defendant’s motion for judgment notwithstanding the verdict.

Gibson, C. J., Shenk, J., Schauer, J., and Spence, J., concurred.