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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