May 08

The Trivial Defect Doctrine – How Municipalities Can Avoid Having Their Repair Criteria Used Against Them

By Caryn Siebert, Seymour B. Everett, and David L. Martin

The trivial defect doctrine is one of the main weapons a city can use when defending against claims of dangerous conditions on public property. Under this doctrine, trivial defects that do not create a substantial risk of injury are not actionable. The underlying premise is that public entities are not insurers of public ways and cannot be expected to maintain them in perfect condition at all times. This doctrine frequently comes into play when pedestrians are injured on sidewalks maintained by the city. It can be raised in a motion for summary judgment, which if granted, permits the city to avoid a costly trial. Given the financial pressures under which many municipalities are operating, and especially in light of recent periods of recession and budget shortfalls, a quick primer on this critical topic seemed timely.

During the past several years, municipalities have been impacted by decreasing tax revenues, which have limited their ability to maintain and repair sidewalks. Some cities have responded by implementing cost-sharing programs that require neighboring land owners to bear a portion of the cost of any required repair. Still other cities have placed the onus of repair entirely on nearby landowners. The only exception is when parkway trees maintained by the city have damaged the sidewalks. Yet other cities have terminated their maintenance program for the time being. Although cities should explore a variety of methods to reduce costs, they should not abandon the programs altogether. As discussed below, taking such action could cause the city to lose the benefit of defenses provided by statute.

One pitfall that municipalities should avoid is selecting repair criteria that can be used against them while defending themselves.  A common tactic used by plaintiffs to overcome the trivial defect defense is to show that under the city's own guidelines, the defect was significant enough to warrant a repair. To hammer home this point, plaintiffs frequently depose city personnel, who sometimes admit that the condition should have been repaired or was dangerous. A notable example of this occurred in Laurenzi v.Vranizan, (1945)25Cal.2d 806, which is still cited today. In Laurenzi, a city sidewalk inspector admitted that if he had seen the condition complained of, he would have considered it hazardous and repaired it. As a result, the Court found that the defect could not be considered trivial as a matter of law.

In order to avoid this result, cities should carefully evaluate their criteria for repair. Many cities set a threshold for repair at one-half inch of vertical displacement. This is a relatively strict standard that often requires a significant portion of a city's sidewalks to be repaired. This leads to lengthy delays in completing the repairs. In some cities, the average wait time is nearly three years. Rather than setting strict standards that create a large backlog of repairs, cities should set criteria that are more reasonable. This will permit them to address the most troublesome areas first. It will have the added benefit of reducing wait times and the overall repair cost. Moreover, there is significant support in the case law for finding cracks with more than one-half inch of displacement to be trivial. See Fielder v. City of Glendale, (1977) 71 Cal.App.3d 719, 724 (citing decisions finding trivial defects ranging from three-fourths inch to one and one-half inches). As a result, cities should consider modifying their repair criteria for sidewalk maintenance programs.

The seminal case on the trivial defect doctrine is Whiting v. National City, (1937) 9 Cal.2d 163. In Whiting, the plaintiff was injured while walking on a sidewalk that contained a vertical separation of three-quarters inch between two cement panels. Although the trial court found for plaintiff and awarded two thousand dollars in damaged, the appellate court reversed the trial court's decision. It found that the defect was minor and that a person exercising ordinary care would not be harmed thereby. The Court reasoned that it was impossible to maintain a sidewalk in perfect condition and that minor defects were bound to exist. It also found that the city was not an insurer of its public ways. As adjusters and attorneys, we appreciate that although this case was decided more than seventy-five years ago, many trial and appellate courts continue to cite this decision today.

In order for an injured pedestrian to prevail on its claims against the city, it must show that the dangerous condition was created by the negligence of a public employee or that the city had actual or constructive notice of the condition. See Government Code Sections 830(a), 835.2. Because the negligence of a public employee is not the primary cause of most damage to sidewalks, plaintiffs will typically assert that the city had notice of the condition. Actual notice is often difficult to demonstrate given that most cities have hundreds of miles of sidewalk. Instead, plaintiffs generally assert that the municipality had constructive notice of the problem. To make such a showing, plaintiffs must demonstrate that the condition was obvious enough and existed long enough to permit a public entity to discovery if it exercised due care. See Government Code Section 835.2(b).

On this point, the city is permitted to introduce evidence that it operated an inspection system with due care and did not discover the condition. This generally requires the city to select appropriate criteria for repair, implement the program in a consistent manner, and provide adequate funding for inspections and repairs. The inspection program should have a proactive and reactive component. The city should proactively look for damaged sidewalks by completing a city-wide survey on a periodic basis. Additionally, the city should inspect areas complained of by its citizens soon after learning of the problem. By consistently employing these two methods, the city will be able to effectively identify troublesome areas that need to be repaired. Doing this, and repairing damaged sidewalk in a timely manner, will permit a city to demonstrate that its programs were operated with due care. By selecting the proper repair criteria, completing proactive and reactive inspections, and repairing problem areas in a timely manner, a city can prevent plaintiffs from using the city's own standards against it and will permit the city to defeat an essential element of plaintiff's claim.

Caryn Siebert is President / CEO of Carl Warren & Company, a prominent third party claims and litigation management company that serves municipalities, public agencies, insurers, and businesses. Ms. Siebert has authored numerous articles and lectured frequently, including for the Claims and Litigation Management Alliance (and is a Fellow of CLM), PARMA, PRIMA and is Chair of the Combined Claims Conference. Ms. Siebert can be reached at Csiebert@carlwarren.com.

Seymour B. Everett is the Managing Partner at the Newport Beach office of Wood, Smith, Henning & Berman LLP. His practice includes public entity defense, professional liability, and environmental litigation. Mr. Everett represents municipalities, school districts, police officers and governmental agencies in all aspects of litigation and can be reached at SEverett@wshblaw.com

David L. Martin is Senior Counsel at the Newport Beach office of Wood, Smith, Henning & Berman LLP. His practice includes public entity defense, professional liability, and business litigation. Mr. Martin represents municipalities, school districts, police officers and governmental agencies in all aspects of litigation and can be reached at DMartin@wshblaw.com

1 comment

  1. Read more about how to document your sidewalks.

    http://wilmes.co/single-best-way-bolster-trivial-defect-defense/

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