In Martinez v. City of Beverly Hills, published November 10, 2021, the Second District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city. The plaintiff tripped and fell when her rubber flipflop edge hit the edge of a drainage swale in the alley through which she walked. The asphalt that was normally flush against the edge of the swale had worn away, creating an approximately 1.75" divot. The divot had been there for at least two years. The city has an inspection program under which it hires a contractor every two years to inspect the city's streets and alleys and prepare a report spelling out the condition of the alley or street, which the city uses to prioritize resurfacing projects. The project is not to identify specific divots. The city will also inspect and if warranted repair any potential hazards in response to user calls. The city had not inspected this alley since at least seven years before the accident. In the six years before the accident, the city had received no complaints or work orders concerning this divot. The year before the accident, the city received a user call reporting a large indentation in the alley. A city crew went to the alley to repair the indentation, and filled three large potholes. The crew did not repair the divot. Per the supervisor, if the crew had seen the divot, it would have done nothing to fix it because the size was insignificant and the material used to patch the potholes cannot be used for small divots. The trial court granted summary judgment on the ground that the city had no actual or constructive notice of the divot.
The appellate court agreed that summary judgment was appropriate on the notice issue. It found no triable issue of fact on whether the city had actual notice. It rejected the argument that every possible city employee who may have been in the alley in the past had to present a declaration denying knowledge of the divot. In light of the supervisor's declaration that the crew that fixed the potholes that the crew would have taken no notice of the divot because it was too insignificant, any inference that employees who did not present declarations would have noticed the divot was not reasonable. To prove constructive notice, the test is whether the defect was sufficiently obvious under the circumstances. Under Government Code section 835.2, the test for obviousness includes considering whether the property was safe for intended or actual known uses of the property. While sidewalks are intended for persons to walk on, alleys are intended for vehicle use and only occasional pedestrian use. Public policy warrants requiring more rigorous scrutiny of sidewalks for defects than alleys. Because alley surfaces degrade far more quickly than sidewalk surfaces, due to use by heavy vehicles, the cost of keeping alleys safe for pedestrians is higher than for sidewalks, and the likelihood of injury to pedestrians is lower. Public entities may therefore reasonably elect to apply less rigorous scrutiny for defects as compared to sidewalks. The divot here was therefore, as a matter of law, not sufficiently obvious to create constructive notice.
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