CADAM v. SOMERSET GARDENS TOWNHOUSE HOA
(2011) 200 Cal.App.4th 383
Alderlaw, C. Michael Alder; Law Offices of John B. Richards, John B.
Richards; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff
Horvitz & Levy, Mitchell C. Tilner, Wesley T. Shih; Stub,
Boeddinghaus & Velasco, Gerald B. Velasco; Early, Maslach & Van
Dueck, John C. Notti for Defendants and Appellants. [200 Cal.App.4th 384]
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 homeowner's association, and Goetz
Manderley (GM), a homeowner's association management firm. (Code Civ.
Proc., §§ 629, 657.) fn. 1 We affirm.
FACTS AND PROCEDURAL HISTORY
Somerset 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 [200 Cal.App.4th 386]
bright day. As agreed by the parties, the difference in height between
the two walkway segments was between three-fourths and seven-eighths
inch. fn. 2
Cadam 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.
In 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
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
On August 8, 2007, Cadam brought an action against Somerset, GM, and
Inland Pacific Builders for premises liability and negligence. The
matter [200 Cal.App.4th 387] proceeded to trial. fn. 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.
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 [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 [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 [city may not ignore cumulative perils presented by an "entire sidewalk crumbling and falling apart"].) [200 Cal.App.4th 388]
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 [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 [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 ["[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
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.) 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.)
 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 [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 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 [200 Cal.App.4th 389] 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 [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.
 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.)
 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 [plaintiff's] walkway
inevitably occur, and the continued existence of such cracks without
warning or repair is not unreasonable. Thus, [defendant] is not liable
for this accident irrespective of the question whether he had notice of
the condition." (Ibid.) [200 Cal.App.4th 390]
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
The judgment is affirmed. Somerset and GM shall recover costs on appeal.
Coffee, J., and Perren, J., concurred.
FN 1. All further statutory references are to the Code of Civil Procedure.
FN 2. We have examined the six photographs depicting the separation, admitted into evidence as Cadam's exhibit No. 35.
At the beginning of trial, Cadam and Inland Pacific Builders agreed to
settle the lawsuit for $155,000. The trial court subsequently found the
settlement to be in good faith. Cadam then dismissed Inland Pacific
Builders from the action.