Many people are injured when they trip and fall over a rise in the sidewalk or other defect on public or private property. The “trivial defect rule” dictates that the property owner is not liable for injuries sustained by an individual on the premises if reasonable people would conclude that the defect that caused them to fall was “trivial”. This term was generally defined by case law as any change in height less than ¾”. The “trivial defect” rule was initially developed to protect government from liability for defects on public property, but was eventually expanded to cover private property as well. However, two recent California Court of Appeal rulings have now significantly expanded the restrictive definition of “trivial defect” in trip and fall cases to require the court and jurors to consider more than the mere size of the defect that caused the fall.

In the 2007 case Kasparian v. Avalon Bay Communities 1 an 80 year old woman had tripped on a drain cover on private property and fell sustaining a cervical fracture and broken teeth. The trial court granted the defendants' summary judgment motion on the basis of the trivial defect rule since the drain cover was recessed into the ground by a mere ¼ inch, which was an amount that the trial court found to be in accordance with industry guidelines, and therefore trivial. However, the appeals court overturned the trial court's ruling, and in its decision expanded the parameters of the trivial defect rule in private property cases.

The Court of Appeal emphasized that when determining whether a defect is in fact trivial, the court must look at the totality of the circumstances surrounding the injury; including the particular location, the time of day that the incident occurred, and the full content of all expert witnesses' testimony. In this case, the court found that reasonable minds could disagree on whether the drain cover was a trivial defect. Therefore, the court held that a measurement alone may not be sufficient basis for a finding that a particular defect is trivial, but rather it is only one factor to be considered in making such a determination. As the court quoted from Dolquist v. City of Bellflower 2 , “merely using a tape measure's measurements as the determining factor in a trivial defect case is insufficient as other factors in addition will weigh on a reasonable person's judgment when looking at the defect.”

The sentiment expressed in the Kasparian decision was carried over into the issue of public entity liability in the June 30, 2008 decision in Stathoulis v. City of Montebello 3. In Stathoulis, a woman was injured when she tripped and fell while walking across potholes in a residential street. The woman filed suit again the City of Montebello alleging the presence of the three potholes, which measured 19 to 24 inches long and one to one and a half inches deep, were dangerous conditions, and the City was negligence for not repairing them. The City moved for summary judgment citing the trivial defect rule. Although the trial court agreed with the City, that decision was reversed on appeal. The appeals court ruled that reasonable people could disagree on whether those potholes presented a substantial risk of injury.

As in Kasparian and Dolquist, the Stathoulis court found that the measurement of the potholes' depth is just one of several factors, albeit the most important of these factors, that must be considered when deciding whether a defect should be classified as trivial as a matter of law. Other factors include the nature and quality of the defect, the time of day and lighting conditions when the injury occurred, and whether anyone else has been injured by the same defect. In this case, there were other potholes around the one the plaintiff fell in, they were irregularly shaped with jagged abrupt vertical edges, and contained loose material within them. Acknowledging it was a close call to make, the appeals court found that taken together, these holes could reasonably be found to present a substantial risk of injury to a reasonably careful pedestrian.

The conclusion of these recent appeals court rulings in the Kasparian and Stathoulis cases clarify that the differential in height of a defect should not be the sole determining factor when deciding whether to apply the trivial defect rule. These rulings will allow more victims of trip and fall incidents to have their cases decided by a jury of their peers, rather than being tossed out of court solely because of the size of the defect. Courts will now be forced to look at the totality of the situation that led to the injury, not just the defect's measurements. There are many factors that could make each situation different, and therefore it is important for the victim to promptly retain an experienced personal injury attorney so that the evidence can be preserved before the defect is repaired or the scene changes.

*Russell S. Kohn, Esq. was the NCBA President in 2004 and is a former NCBA Personal Injury Section Chairman. His law office is in Oceanside, where he specializes in plaintiff personal injury law. He can be reached at (760) 710-0190.

[1] Kasparian v. Avalon Bay Communities, (2007) 156 Cal.App.4 th 11, 66 Cal. Rptr. 3d 885

[2] Dolquist v. City of Bellflower, (1987) 196 Cal.App.3d 261, 267, 241 Cal Rptr. 706

[3] Stathoulis v. City of Montebello, (2 nd Dist., 2008) 164 Cal.App.4 th 559, 78 Cal.Rptr.3d 910