A California Court of Appeal recently addressed a lawsuit involving allegations of a dangerous condition on public property. At issue in this opinion was whether the defendant, the City of Burbank, had notice of the alleged dangerous condition – an uneven sidewalk. The court reviewed the allegations under the Government Claims Act, which governs potential liability for public entities.
In the afternoon of September 7, 2011, Sarah Moore was walking in the City of Burbank, near her apartment, when she tripped and fell on a raised edge of the sidewalk. The concrete portion of the sidewalk had been uplifted about two inches by tree roots. Ms. Moore had moved to the area only a week earlier and could not recall if she had noticed the uneven sidewalk. She fell on her left hand and both knees, breaking the bones in her left wrist and requiring surgery and therapy.
Months later, Ms. Moore submitted a claim to the City for more than $3 million for her injuries resulting from the incident. A City supervisor inspected the sidewalk and subsequently replaced it. Ms. Moore then filed a complaint alleging negligence, claiming the City knew or should have known of the dangerous condition of the sidewalk, created the condition, and caused her injuries.
In response, the City moved for summary judgment, arguing that they were immune from common law negligence claims, they did not have notice of the dangerous condition, the sidewalk was not dangerous, and their reasonable sidewalk inspection program did not reveal the dangerous condition. In support, the City presented evidence that they had inspected the location of Ms. Moore’s fall in 2001 and again in 2006, through a sidewalk inspection program. The City also reviewed records and found no prior injuries or complaints about the location of Ms. Moore’s fall.
In opposition, Ms. Moore argued the City had actual and constructive notice of the defect in the sidewalk, a City employee created the condition by failing to reasonably inspect and repair the defect, and the City proximately caused her injury.
On appeal, the court stated the Government Claims Act, and specifically Government Code section 835, governs the City’s potential liability. This provision of the Act states that public entities are liable for injuries caused by dangerous conditions on their property if the plaintiff shows that (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that took place; and (4) either an employee negligently created the condition, or the entity had notice of the condition and did not take steps to protect against it.
Regarding the element of actual notice, the court of appeal stated that a public entity has actual notice when it had actual knowledge of the condition’s existence and knew or should have known of its dangerous character. Here, the City did not know of the uneven sidewalk. The evidence showed the City inspected the sidewalk in 2001 and 2006 and did not note defects. Additionally, there had been no complaints or reports of problems at that location.
Constructive notice exists when the condition had existed for so long, and so obviously, that the public entity, in exercising its due care, should have discovered the condition and its character. Due care may be shown through reasonably adequate inspection systems, and whether the public entity maintained inspection systems. In other words, the court stated constructive notice is shown when an obvious danger existed for a period of time before the accident, and state employees who exercised due care would have discovered the situation.
Here, the court stated that Ms. Moore did not offer evidence showing the sidewalk had been in an obviously dangerous condition long enough for City employees to discover it while exercising due care. The court stated that the City had a four-pronged, $760,000 a year inspection system. According to the court, there was not much more the City could do to detect a two-inch defect at one spot in a sidewalk in a city that consists of over 300 miles of sidewalks. In terms of policy concerns, the court stated that placing the burden on the City to continually inspect sidewalks for defects creates an imbalance between the cost of inspection and the likelihood of danger from the condition.
The court also stated there had been no evidence that an obvious condition existed before the accident, such that the City should have reasonably discovered it. There had not been a showing that the condition existed long enough for the City to have reasonably discovered the uneven sidewalk.
While Ms. Moore alleged that the absence of prior complaints did not show a lack of notice, the court rejected this argument. Not only were there no prior complaints or injuries, the court stated, but also the City showed that they performed reasonable inspections, and the displaced sidewalk had not been discovered.
Regarding the City’s alleged negligence in creating the dangerous condition by planting a tree with a spreading lateral root system in a limited space, the Court stated that Ms. Moore had waived this argument, since it was not presented in opposition to summary judgment. Traditional negligence rules apply to the question of whether a city employee acted negligently in creating a dangerous condition. Therefore, Ms. Moore was required to show the City failed to exercise due care in order not to create an unreasonable risk of injury to others and that it was foreseeable that individuals would be injured due to the City’s conduct.
The judgment was affirmed.
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