A man trips, falls, and gets a suit reversed: this case involves a negligence action suit reversed on appeal. In December 2018, the Plaintiff went for a walk in his Monrovia neighborhood. As he hurried to cross an intersection before the traffic light turned red, he caught his sneakered foot on a lift in the asphalt sidewalk in front of the Defendant’s home, causing him to fall and hit his hands and knees on the ground.

In August 2019, the Plaintiff filed an action against the Defendant, the City of Monrovia, and the County of Los Angeles, alleging that the Defendant negligently maintained the sidewalk in a dangerous condition, including allowing a sidewalk displacement gap of over an inch in height, which caused his fall.

The response from the Defendant was that the alleged dangerous conditions amounted to a trivial defect, and she moved for a summary judgment. She submitted the Plaintiff’s deposition testimony that after he fell, he had measured the height differential with his key and described it as “a little more than one inch”. The Defendant also submitted an architect’s declaration which stated that the sidewalk complied with applicable codes, statutes and regulations and that the defect was trivial, along with several photographs of a tape measure next to the asphalt sidewalk gap suggesting that the differential was between 10/16 and 13/16 of an inch.

The Plaintiff’s subsequent response was to dispute the height differential measure and to argue that the height of the displacement, combined with other factors, made the sidewalk defect nontrivial. He submitted a forensic analyst’s declaration who stated that they visited the site in February 2021 and that although the asphalt patch had been removed and replaced with concrete, they measured the height differential as approximately 1 3/16 of an inch. The analyst stated that the asphalt patch was a “tripping hazard” and “not a trivial defect”.

The trial court agreed with the Defendant that the Plaintiff’s evidence that the lift was 1 3/16 inches “did not create a triable issue of material fact, considering that courts have found height differentials as big as 1 1/2 inches high to be trivial”. The court also found that “the obvious and distinctive nature of the asphalt patch” was consistent with a determination that the sidewalk’s condition was a trivial defect. The trial court granted the Defendant’s motion of summary judgement, and the Plaintiff timely appealed from the ensuing judgement.

In October 2022, the Appellate Court reversed the trial court’s ruling, finding that a) the Defendant didn’t meet her burden on summary judgment to show the defect was trivial as a matter of law and b) the Plaintiff created triable issues of material fact that precluded the summary judgment. The appeals court pointed out that while the architect’s supporting declaration stated that the height differential was less than one inch, he did not state how or why he knew this, nor did he give any other basis for his conclusion. As a result, the appeals court decided that it had no evidentiary value and could not support the summary judgment.

The appeals court also stated that even if the Defendant had met her moving burden on the summary judgment, the Plaintiff submitted evidence creating triable issues of material fact on the height differential. Unlike the Defendant’s architect, the Plaintiff’s forensic analyst provided a factual basis for their height conclusion. She stated that she personally visited the site after the asphalt patch was removed and replaced with concrete; she was able to take height measurements and found “a height differential of approximately 1 3/16 inches. She attached photos of the site taken by her company the day that she visited to substantiate her claim and in doing so, created a material fact.

The appeals court concluded with, “Because reasonable minds could differ about whether the condition of the asphalt patch, combined with the one and one-half height differential, presented a substantial risk of injury, the trial court erred in granting [Defendant’s] motion for summary judgment”. The appeals court reversed the judgment and ordered the Plaintiff to recover his costs on appeal.