In Restivo v. City of Petaluma, ordered published May 20, 2025, the First District Court of Appeal, Division 1 affirmed summary judgment for the defendant city. The plaintiff was injured when her skateboard's wheel caught in a crack or pothole on the street surfaces that she described as 6-9" in length, 1-2" deep, and 4-7" wide. Although she said it was very clear and that a person walking would see it, she said she had never seen it before despite having traveled the street hundreds of times, including skateboarding multiple times. She did not take any photos at or near when she fell. Two months later, she took multiple photos of the street, laced with cracks that have sealant in them. She was unable to point out the precise spot where she fell. She initially asserted the city had filled the crack with "slurry." She sued the city for dangerous condition of public property. The city moved for summary judgment. It submitted evidence it was unaware of any other incidents or accidents on the street, and in 10 years had not received a complaint about the street. The city further showed it had not slurried the street before the accident. Cracks had been filled with crack sealant, for minor cracks, which would not be used for a crack the size the plaintiff described. There were no work orders for the street between the accident and the date the plaintiff took the photos. Three months after the accident, the city resurfaced the entire length of the street with slurry seal, pursuant to a 2019 condition report of the street from vendors. The report is at a high level and does not identify specific cracks or potholes. The street was given a "fair" grade and an approximate life of 8.94 years. A map in an appendix to the report showed the street shaded in orange, indicating "poor" condition. After it received the report, the city conducted its own inspection of the street, concluded that the street was in "good to fair" condition, and the resurfacing would extend the road's life. The project was done as part of numerous road projects. The plaintiff submitted an expert declaration declaring the crack/pothole created a substantial hazard; that the plaintiff's photos showed bubbling of the crack sealant; and that the city knew or should have known of the unsafe condition, based on the vendor inspection leading to the pavement report and the city's own subsequent inspection. The trial court granted summary judgment, based on lack of evidence of actual or constructive notice of a dangerous condition.
The appellate court agreed. The plaintiff contended that the city was generally aware of cracks in the street, based on the pavement report and the crack sealant applied to the street before her accident. But that does not establish the city had notice of the large crack/pothole that allegedly caused her accident. Uncontradicted evidence establishes report shows an overall assessment of city streets and does not identify specific problems. It was also uncontradicted that after the city's own inspection no employee reported any issue or concern about the street. There was no evidence the slurry seal was applied because of prior notice of any dangerous condition on the street. The plaintiff also did not raise a triable issue on constructive notice. The city undertook regular inspection of its streets, and there was no evidence the inspection schedule was unreasonable. The plaintiff could not manufacture an issue of fact using an expert declaration based only on speculation.
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