Jim Porter: Tripping on a sidewalk – grounds to sue?

Jim PorterSpecial to the Sun

TRUCKEE/TAHOE – This is a brand new case out of Santa Maria in Southern California that we can all relate to: tripping on an uneven sidewalk.Barbara Cadam lived in the Somerset Gardens townhome project. On October 19, 2006, 63-year-old Cadam was wearing business attire, including high-heeled shoes. She was talking to her gardener, looking back at him as she walked on the sidewalk of her townhome. As she put it: “I kind of looked (at the gardener), and my right foot caught, I hit with … the toe of my right shoe, and I started to go forward, and I tried to catch myself with my left foot, and it also hit the rise in the cement and I went down…”Unfortunately, Cadam suffered major injuries and has had six surgeries and now lives with permanent nerve damage and disabilities. The cause of Cadam’s fall was a slight difference in height between two walkway segments of the concrete sidewalk, which everyone agreed had a difference in height of between three-fourths and seven-eighths of an inch. Somerset Gardens was a relatively new project, yet the president of the Association knew of some sidewalk separations including at Cadam’s townhome. The sidewalks were later repaired.$1,336,197 jury awardCadam sued and the jury decided in her favor, awarding $1,336,197 in damages – allocating responsibility equally between the Association and its management company. No liability on Cadam’s part. Hmm.That was not the end of this case, however, as the defendants filed a motion for what is known as a judgment notwithstanding the verdict (JNOV), asking the trial court to overturn the jury’s verdict. When you lose, it’s always worth asking for a JNOV, but seldom granted.Well this is one of those rare cases, because the trial court granted the motion for a new trial concluding that the difference in the two walkway segments was a “trivial defect.”Trivial defect defenseOf course, Barbara Cadam filed an appeal of the JNOV, arguing that all facts considered, the sidewalk defect was not trivial and she is entitled to her healthy award. To be honest (one of my least favorite expressions), I was not familiar with the trivial defect defense, which in simple terms means that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in his or her property.As the Court wrote, “Persons who maintain walkways – whether public or private – are not required to maintain them in absolutely perfect condition … The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” I like the trivial defect defense. Of course, in places like Mexico or Buenos Aires, where you can trip on a sidewalk and fall in over your head, the trivial defect defense takes on new meaning.The policy underlying the trivial defect rule is the impossibility of maintaining heavily traveled surfaces in perfect condition.RulingThe Court of Appeal in the Cadam case noted the walkway had no broken pieces or water concealing the defect, the area was well lit and the weather was perfect, plus Cadam was looking back at the gardener. The Court might have ruled otherwise, as another court did when an “entire sidewalk is crumbling and falling apart.”The Court of Appeal upheld the trial court’s overturning the jury verdict. Even though it’s a hardship on Barbara Cadam, I agree with the ruling. Not that anyone asked.Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to-the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at at the firm’s website

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