The Fourth District Court of Appeal affirmed summary judgment in Heskel v. City of San Diego (2014) ___ Cal.Rptr.3d ___ (2014 WL 2811185). The Court found that a hollow sign pole base, protruding approximately two inches above ground level was not obvious enough to provide the City with constructive notice.
Menahem Heskel ("Heskel") sued the City of San Diego ("City") based on injuries that occurred when Heskel tripped over a hollow metal sign pole base protruding from a sidewalk while walking at night. Heskel claimed that the area was not properly lit, and that the pole base constituted a dangerous condition of public property. There was no evidence that the City had actual notice of the condition, or that it was so obvious that the City should have noticed the condition. The Fourth District Court of Appeal affirmed the trial court's grant of summary judgment in favor of the City, finding that the City did not have notice of the condition.
In order for liability to attach for dangerous conditions on a sidewalk, the Court must find that the 1) sidewalk was in a dangerous condition, 2) that it caused the alleged injury, 3) that the risk of the kind of injury incurred was reasonably foreseeable, and must also find that either 4) the condition resulted from a negligent or wrongful act of the public employee, or 5) that the public entity had actual or constructive notice of the dangerous condition. (Government Code section 835).
There are two elements of a dangerous conditions of public property cause of action (“DCPP”) that may be defeated by a finding that the defect at issue is trivial or insignificant: the first element, whether the defect constitutes a dangerous condition, and the fifth element, whether the defect was so insignificant as to defeat an argument of constructive notice. This case explores the constructive notice element.
The Court noted, "A claim for constructive notice has two threshold elements. A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the condition was obvious." Based on the outcome in Heskel, even if a defect is not "trivial as a matter of law" such as to overcome the dangerous condition element of a DCPP claim, the defense can still argue that the defect is so minor as to overcome an argument of (constructive) notice.
What This Means To You
Although the minor nature of a defect should have always been considered in separate analysis for these two issues, courts have generally viewed them together, using a finding of significance for both analyses. Heskel should help to eliminate that practice, by providing a different standard for the constructive notice showing. In Heskel, the Court noted that although the condition had existed for more than one year, the City has no record of complaints about the condition, and that it was not "substantial or readily apparent from the street". Thus, the Court found that Heskel had failed to make a prima facie showing that the condition was obvious. By raising the standard for finding constructive notice, this case adds an arrow to your public entity personal injury defense quiver.
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.