By Eric Ganci
This December 2023 Court of Appeal published opinion Miller v. Pacific Gas & Electric, cited as 97 Cal.App.5th 1161, gives further thoughts when there is an alleged dangerous condition on the ground, which causes someone to trip and fall.
First, the facts here:
The tripping hazard was a “metal plate covering an underground utility vault owned by Pacific Gas and Electric Company (PG&E) and the surrounding sidewalk adjacent to property owned by Hip Sen Benevolent Association….”
The misalignment was less than one inch, although no exact measurement was given in this case decision.
Plaintiff presented and argued all factors combined with the size differential to create a triable issue, including:
- the ground was a “steep downhill slope” of 9%;
- the downslope created an “optical illusion” that the sidewalk surface was level;
- she did not see the height differential before she tripped because she was going downhill and therefore looking some eight to ten feet ahead;
- it had drizzled earlier in the evening and the night sky was dark, foggy, and misty;
- the sidewalk was wet and crowded with people; and
- the City guidelines require repair of sidewalk height differentials one-half inch or greater and the City inspector ordered repairs of the misalignment.
This Court shut down every argument by Plaintiff. The Court analyzed these factors:
- (1) the size, nature, and quality of the defect – a vertical misalignment of less than one inch with no broken pieces or jagged edges on the metal plate or surrounding sidewalk;
- (2) visibility – although the accident occurred at nighttime the area was illuminated with artificial lighting from multiple sources and there was no debris or material on the metal plate or surrounding sidewalk that concealed the defect; and
- (3) lack of prior incidents – there was no evidence of tripping incidents before [Plaintiff’s] accident.
To note, Plaintiff also tried to argue the “City’s repair notices to PG&E and Hip Sen for their violations of the City’s Guidelines”…but since this was raised for the first time in this appeal, the Court rejected considering this argument, saying Plaintiff forfeited this argument.
The Trial Court granted summary judgement based on the trivial defect, and this Court affirmed and awarded costs to Defendant on appeal.
