Low, Ball & Lynch’s

WEEKLY LAW RESUME

October 28, 2004 Issue   By: Raymond Coates

Duty of Care - Sidewalk Crack Causing Fall

Josephine Caloroso v. Larry Hathaway

Court of Appeal, Second District

(September 28, 2026)

It is well-established under California law that a public or private landowner is not liable for damages caused by a minor, trivial or insignificant defect in property.   Quite often, this issue of a “trivial defect” arises when a person trips on a crack in a walkway or sidewalk, and is injured.

Josephine Caloroso tripped over a slight crack in a walkway on a clear, sunny day in front of Defendant Larry Hathaway’s home.  The crack measured between 0.4 and seven-sixteenth of an inch.  Mrs. Caloroso sued Mr. Hathaway for negligence and premises liability, alleging that individual concrete slabs of walkway were cracked, jagged, and depressed, and therefore constituted a dangerous condition.  Mrs. Caloroso, and her husband, who asserted a loss of consortium claim, claimed that Hathaway’s failure to repair the crack and failure to warn about the dangerous condition caused the accident.

Homeowner Hathaway moved for summary judgment on the grounds that he had no notice of a problem, and that he owed no duty to plaintiffs, because the risk of injury was trivial.  Indeed, there had been no prior accidents involving the walkway.  In opposition to the summary judgment motion, the Calorosos argued that the court should look at the totality of the circumstances, not just the size of the crack in determining whether there is a dangerous condition.   Specifically, plaintiff pointed out that the presence of cracks was foreseeable, because of the presence of an adjacent large tree.  Further, plaintiffs relied on an expert witness declaration from a civil engineer, who testified that the elevation difference at its greatest was seven sixteenth of an inch.  According to the engineer, the size of the crack violated the Uniform Building Code and the ASTM Standard Practice for Safe Walking Surfaces.  The engineer also felt other factors contributed to the dangerous condition, including the irregular shape of the crack, and the  interplay of shadows and sunlight.

The trial court granted summary judgment.  In doing so, the court  sustained  Hathaway’s objection to the expert declaration, holding that it was unnecessary to have an expert witness opine on whether a crack in a walkway was trivial. 

On appeal, the Calorosos contended that they had submitted sufficient evidence of a dangerous condition to support a triable issue.  The Second Appellate District agreed with plaintiffs that a court should decide whether a defect is dangerous only after considering all of the circumstances surrounding the accident.  This analysis should include looking at whether there is something besides the size of the crack that causes a fall, such as whether a view of the condition was obstructed, or if the walkway had broken or jagged pieces.   Here, the appellate court noted that several prior California  courts had ruled that sidewalk cracks one-half inch or more had been determined to be trivial as a matter of law.  Therefore, the court reasoned that the defect in question should also be deemed trivial, unless there was admissible evidence that other conditions made the walkway dangerous.

The appellate court then turned its attention to the expert declaration of the civil engineer.  Photographs of the crack convinced the court that the defect was not overly irregular  in shape or jagged.   Further,  the court found no foundation for the proposition that the UBC or the ASTM standards applied to sidewalks, let alone private walkways.   The court also found notable evidence that the accident had occurred in bright sun-light and that Mrs. Caloroso’s vision of the defect was not obstructed. 

The appellate court affirmed the summary judgment.  In so doing, the court set forth that it is impossible for landowners to maintain heavily traveled surfaces in a perfect condition.   Minor defects,  such as cracks, are inevitable.  The defect on Defendant Hathaway’s walkway was trivial, and therefore Hathaway had no duty to repair or prevent the accident.  

COMMENT

This decision reinforces  the “Trivial Defect Defense,” and is therefore significant for public and private landowners.   Equally important was the court’s rejection of expert testimony by Plaintiffs’ retained civil engineer.   This decision will be helpful for defendants attempting to bar expert opinion on matters that are not beyond common experience.    

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