CADAM v. SOMERSET GARDENS TOWNHOUSE HOA
(2011) 200 Cal.App.4th 383
OPINION
GILBERT, P. J.—
A trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development.
Barbara
Cadam appeals a judgment notwithstanding verdict (JNOV) and
alternatively, a new trial order regarding damages, in favor of Somerset
Gardens Townhouse HOA (Somerset), a homeowners association, and Goetz
Manderley (GM), a homeowners association management firm. (Code Civ.
Proc., §§ 629, 657.)
1 We affirm.
FACTS AND PROCEDURAL HISTORYSomerset
Gardens is a recently built townhome development in Santa Maria,
consisting of 93 townhomes sited among four streets. In 2006, Cadam
leased a Somerset Gardens townhome at 2355 Westbury Way. The townhome
had a cement walkway extending from the driveway to the front door.
Cadam usually entered the townhome, however, through the garage. She
explained: "I had no reason to walk the walkway. It wasn't something
that I normally did. I also didn't go out and look at the plants or
anything. That was maintained by the homeowners' association."
On
October 19, 2006, Cadam returned to her townhome during her lunch break
from her bank employment. She parked her vehicle in the garage but then
noticed that the gardeners were working nearby. Cadam decided to discuss
a lawn sprinkler problem with them. She and a gardener subsequently
walked across her lawn to discuss the irrigation.
Following
the conversation, Cadam walked on the walkway toward the garage. When
the gardener made an additional comment, however, 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. She
described her fall as: "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 . . . ."
Cadam
was wearing business attire, including high-heeled shoes, at the time of
the accident. 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.
2Cadam
suffered injuries to her hands, wrists, elbows, and right knee. She has
had six surgeries, performed over a two and one-half year period, as
well as physical therapy to ameliorate her pain and injuries. Cadam was
63 years old at the time of the accident and her hand injuries have
caused permanent nerve damage and disability.
Prior AccidentIn
September 2006, James Perry, the president of Somerset, inspected the
development with a gardener. During the inspection, Perry tripped over a
sidewalk separation at 2326 Eastbury Way because he "wasn't watching
where [he] was going . . . . [He] was looking at a tree." Perry
"guess[ed]" that the sidewalk separation was one-half inch in depth and
stated that the separation was uniform in appearance. He instructed the
gardener to place a warning flag near the separation.
Perry
knew of two other sidewalk separations that required repair. On October
12, 2006, he learned of the walkway separation at 2355 Westbury Way.
Perry did not instruct that warning flags be placed at any of these
separations.
Perry
directed GM to contact the builder of the development, Inland Pacific
Builders, and request that it repair various sidewalk problems
immediately. On September 19, 2006, GM contacted the builder who later
repaired the sidewalks pursuant to warranty.
Paragraph
5.01 of the Somerset Declaration of Covenants, Conditions and
Restrictions requires Somerset to "maintain all landscaping (including
trees, shrubs, grass and walks) within the individually owned Lots."
Somerset employed GM to assist it in managing the affairs of the
development.
On
August 8, 2007, Cadam brought an action against Somerset, GM, and Inland
Pacific Builders for premises liability and negligence. The matter
proceeded to trial.
3
At the close of Cadam's case, Somerset and GM moved for nonsuit,
asserting that the walkway separation was trivial as a matter of law.
Following argument by the parties and examination of Cadam's photographs
of the walkway separation, the trial court denied the motion.
Following
trial, the jury decided in favor of Cadam and awarded her $1,336,197
damages. It found that Somerset and GM were each 50 percent responsible
for her injuries. Somerset and GM filed a motion for JNOV and, in the
alternative, for a new trial. Following written and oral argument, the
trial court granted the JNOV, ruling that "[n]o reasonable person could
find this was not a trivial defect looking at the photographs, . . . the
height, [and] the surrounding circumstances."
The trial court also granted the motion for a new trial but limited it to the issue of damages "only in the sense that the jury's verdict reflected a finding that plaintiff was not negligent in any manner or for any reason."
Cadam
appeals the JNOV and the alternative order granting the motion for a new
trial regarding apportionment of fault and damages. Somerset and GM
have filed a protective cross-appeal, asserting that the damages awarded
Cadam are excessive.
DISCUSSIONI.Cadam
argues that the trial court erred by granting the JNOV because the
walkway separation that caused her fall was not a trivial or
insignificant defect. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559,
566 [78 Cal.Rptr.3d 910] [general discussion of rule that property
owner is not liable for damages caused by minor or trivial defects in
property].) She asserts that she seldom used the walkway and that
Somerset did not exercise reasonable care in maintaining it. (Graves v. Roman (1952) 113 Cal.App.2d 584, 586-587 [248 P.2d 508]
[policy underlying trivial defect rule is the impossibility of
maintaining heavily travelled surfaces in perfect condition].) Cadam
adds that other sidewalks had shifted or deteriorated within the
Somerset Gardens development (including six walkways or sidewalks on
Westbury Way), but Somerset and GM did not warn residents. (Clark v. City of Berkeley (1956) 143 Cal.App.2d 11, 16 [299 P.2d 296] [city may not ignore cumulative perils presented by an "entire sidewalk crumbling and falling apart"].)
Cadam also contends that the height of the walkway separation is a
factual issue, asserting that photographs admitted into evidence at
trial do not fairly depict the separation height. She also relies upon
the testimony of Somerset's president Perry that any defect over
one-half inch in height was, in his opinion, "probably" dangerous. (
Laurenzi v. Vranizan
(1945) 25 Cal.2d 806, 812 [155 P.2d 633] [city inspector's testimony
that sidewalk defect as depicted in photographs was hazardous precludes
finding that defect trivial as a matter of law].)
Cadam
adds that the danger presented by the walkway separation must be viewed
in light of the circumstances surrounding the accident. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 [237 Cal.Rptr. 413] [depth of walkway depression is but one factor in determining whether defect trivial]; Aitkenhead v. City & County of S. F. (1957) 150 Cal.App.2d 49 [51, 309 P.2d 57]
["[I]t is incumbent upon the appellate court in each case to review the
evidence adduced in the trial court and determine whether in the light
of all of the surrounding circumstances the defect was minor or trivial
as a matter of law."].) The aggravating circumstances on which she
relies include the irregular shape of the separation, lack of color
differential, newness of the walkway, and her unfamiliarity with the
walkway.
II.The
trial court may grant a JNOV only if the evidence, viewed most favorably
to the prevailing party, is insufficient to support the verdict. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138 [76 Cal.Rptr.3d 585].) As a general rule, an appellate court reviewing a JNOV also considers whether sufficient evidence supports the verdict. (Ibid.)
"If the appeal challenging the denial of the motion for judgment
notwithstanding the verdict raises purely legal questions, however, our
review is de novo." (Ibid.)
(1)
It is well settled that a property owner is not liable for damages
caused by a minor, trivial, or insignificant defect in his property. (
Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [19 Cal.Rptr.3d 254]
[sidewalk crack less than one-half inch in depth].) This principle is
sometimes referred to as the "trivial defect defense," although it is
not an affirmative defense but rather an aspect of duty that a plaintiff
must plead and prove. (
Ibid.) Persons who maintain walkways—whether public or private—are not required to maintain them in absolutely perfect condition. (
Ibid.) "The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects." (
Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394,
398.) The rule is no less applicable in a privately owned townhome
development. Moreover, what constitutes a minor defect may be a
question of law. (
Id. at p. 397 [raised edge of three-fourths inch trivial as a matter of law];
Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [139 Cal.Rptr. 876] [citing decisions finding trivial defects ranging from three-fourths inch to one and one-half inches].)
In our de novo review of the evidence, the walkway defect here was trivial as a matter of law. (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th 559,
569 [court properly may determine whether defect is trivial if evidence
is not in conflict].) The parties agreed that the walkway separation
was three-fourths to seven-eighths inch in depth. Cadam testified that
the accident occurred at noon on a sunny day. Cadam's photographs of the
separation do not reflect a jagged separation, shadows, or debris
obscuring the separation. (Caloroso v. Hathaway, supra, 122 Cal.App.4th 922,
927 [court should consider whether walkway had broken pieces, jagged
edges, debris or water concealing the defect, and the lighting of the
area, among other things].) There were no protrusions from the
separation and other persons had not fallen there. The crack in the
sidewalk does not appear to be on a slant as Cadam's counsel suggests.
The walkway was newly constructed and the view of the separation was not
obstructed. Moreover, Cadam testified that she did not see the
separation because she "wasn't looking at [it]." Nor does she show where
on the sidewalk she fell.
Although
other sidewalk or walkway separations existed in the Somerset Gardens
development of 93 townhomes, Cadam's accident did not occur on those
separations. We do not consider the circumstances or nature of them for
that reason.
(2)
The opinion of Somerset's president that a defect of one-half inch or
more is "probably" dangerous does not preclude our conclusion that the
defect on which Cadam stumbled is trivial. (Fielder v. City of Glendale, supra, 71 Cal.App.3d 719,
732 ["For in this area there is no need for expert opinion."].) "It is
well within the common knowledge of lay judges and jurors just what type
of a defect in a sidewalk is dangerous." (Ibid.)
(3)
Moreover, the duty of care imposed on a property owner, even one with
actual notice of a defect, does not require the repair of minor or
trivial defects. (Caloroso v. Hathaway, supra, 122 Cal.App.4th 922,
929.) "Minor defects such as the crack in [the plaintiff's] walkway
inevitably occur, and the continued existence of such cracks without
warning or repair is not unreasonable. Thus, [the defendant] is not
liable for this accident irrespective of the question whether he had
notice of the condition." (Ibid.)
III.
In view
of our discussion, we do not resolve Cadam's arguments regarding the
trial court's alternative grant of a new trial regarding apportionment
of fault and damages. We also need not resolve Somerset and GM's
protective cross-appeal regarding asserted excessive damages awarded
Cadam.
The judgment is affirmed. Somerset and GM shall recover costs on appeal.
Coffee, J., and Perren, J., concurred.