By Eric Ganci
First, a shout out to Noah Moss from our office. We were geeking on case law about dangerous premises cases, and he mentioned this new case, Stack v. City of Lemoore, that was filed in May 2023. The citation is 91 Cal.App.5th 102. It was in my list of new cases to read, but the discussion shot this case to the top of the list to check out.
The premise of this case is this:
A Plaintiff jogger was jogging in an area which had a few alleged dangerous conditions. One condition was a raise in a side of 1 ¾” inches. Plaintiff was jogging and caught his toe on this lip, fell and hurt himself.
A main part of this case appeal was the fact Plaintiff had “safely traversed this particular sidewalk some 300 times [over the previous two years] before without incident….”
Procedurally here, the trial court entered a judgment of nonsuit on Plaintiff’s negligence cause of action, and denied the City’s motions for a nonsuit and for a directed verdict on the cause of action for maintaining a dangerous condition. The case went to trial and the Jurors found for Plaintiff to the amount of $90,000. The City appealed.
So, on a case like this, can Plaintiff’s familiarity with the area affect whether this alleged danger was either open and obvious or trivial? Well, it depends. And the Courts, including with this decision, hold differing opinions. And the Court here says this:
Plaintiff’s extensive history of jogging over that stretch of sidewalk also bears on the oft cited factor of the given plaintiff’s level of familiarity with the area where they tripped. We respectfully part ways with the Court of Appeal precedent weighing a particular plaintiff’s familiarity with the defect as part of the dangerous condition analysis. In our view, individual familiarity is not a proper factor for consideration within the trivial defect doctrine.
The Court further analyses with this:
As when establishing duty in a general negligence claim, one establishes a condition’s dangerousness (or conversely, its triviality) for a [Government Code] section 835 claim by reference to its reasonably foreseeable use by reasonably careful users as a class—not the particularities of the plaintiff who happens to have the misfortune of being injured by the condition.
Then the Court gives this quote from another case: “[A] court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”
Again, this Court notes “several Court of Appeal cases nevertheless treat the “plaintiff’s knowledge of the area” as a factor to be considered in determining whether a defect is trivial as a matter of law.” However, this Court also disagrees, by saying: “We conclude that this unique fact about this particular plaintiff does not bear on the triviality of the defect encountered.”
