• Chris Marshall

What is a "trivial defect" in a sidewalk trip-and-fall case?

Injuries caused by a slip and fall on a sidewalk in San Diego are common. Personally Injury claims subsequently filed against the city for damages are nearly as common. While there several strategies that the city’s lawyers will use to defend these claims, in California there is one barrier that will always have to be overcome: trivial defect.

In California the trivial defect doctrine states that in a personal injury case involving a trip and fall, the condition that caused the fall must be significant, not trivial. If a defect is held by a court to be trivial then a lawsuit will not be allowed to proceed. There is no minimal dimension or rule for what is or isn’t trivial, and the court will examine all relevant facts including width, depth, irregularity and context.[i]

When does the trivial defect doctrine get used?

The trivial defect doctrine is not an affirmative defense.[ii] Instead, it is a burden of proof that the plaintiff must overcome in order to prove that the defect is not trivial. Additionally, the court considers this a question of law rather than a question of fact, meaning that this is entirely up to the judge before the jury ever even appears.

The judge will determine whether the defect is question is trivial or not using a three-step process. First, they will review photographic, video and measurement evidence and make a preliminary decision. If this first examination ends up with a ruling that the defect is trivial, the judge will then move on to consider other context-based factors. These additional factors include things like weather, lighting, visibility, obstructions and the victim’s knowledge of the area generally.

Third, the judge will look at whether the purported defect was conspicuous enough to put the owner on notice that there was a problem. If the judge ultimately decides that the defect was not trivial then the lawsuit can proceed, pending other motions and defenses.

Does it matter if it was private property or city property?

Yes, judges know that the City of San Diego, like many public entities, has thousands of miles of sidewalks to maintain. A court is going to examine a defect differently when the City is the defendant than they will for a small condo complex owner. The small condo complex owner may only have a few hundred feet of sidewalk (or other walkway) to maintain, meaning that their burden of maintenance is higher in the eyes of the court.

This means that a 1” concrete gap might be ‘trivial’ on city property and not-trivial on private property. We assume that the less area a property owner must maintain, the better it should be maintained. This is always heavily fact dependent and plaintiffs and their attorney should be prepared to litigate this issue at length.

What are the factors used to determine if a defect is trivial?

The factors used are not fixed in height, size, etc. as to what makes a defect trivial. Every case is fact dependent as explained above. [iii] Remember that the idea of this analysis is to decide which defects are big enough that they should have warranted the attention of the property owner. Thus, we are looking at two things really: (1) how big of a defect is it and (2) were there other reasons that the owner should have known about it and repaired it already? Obviously if the City has been sued about the same giant sidewalk gap 10 times then they are aware of the problem and should have fixed it already. There are other examples where a property owner can be shown to be constructively aware of a defect as well.

As to the actual defect itself, our best guide is to look at previously litigated cases and try to determine the rough outlines that might apply. When making the final call, a ‘totality of the circumstances’ analysis will come into play so make sure you have gathered all the evidence you can about weather, debris, traffic and other contextual elements.

Not Trivial:

In 2005 Joanne Stathoulis was crossing a street when her heels became lodges into gouges in the asphalt roadway, causing her to pitch forward and suffer severe facial injuries. The court ultimately held that the holes in the street, which were 20” long, 5” wide and ~3/4” deep were not trivial and the lawsuit could proceed.[iv]

81-year old Alberto Mendez was walking with his daughter in a crowd of people leaving the Long Beach Boat Parade. At a particular intersection the handicap ramp was cut into the sidewalk at an angle that created a surprising 4.5” step-up. Alberto fell and broke his arm and the judge concluded that especially in the context of a large group of people leaving a public event together, the odd step-up could not reasonably be seen.[v]

Jaleh Kohan, after being summoned to the Inglewood Courthouse for jury duty in 2006, tripped over a roll of caution tape left sitting near the curb. While the court did hold that this was not a trivial defect, they also held that she could have walked around the tape.[vi]


Josephine Calderoso was walking with her husband when she tripped on a crack in the sidewalk in front of a home. She subsequently sued the homeowner. Photographs submitted by both sides showed that the crack was minor and that any irregularity in its shape was minimal. At its highest point the difference in elevation was less than a half inch.[vii]

In Temecula in 2015 Charles Huckey tripped on a lifted concrete panel in the sidewalk. The differential in height between the two concrete panels ranged from 9/16” to ¾” and there were no jagged edges or areas of broken concrete.[viii]

Tim Sailors tripped in the parking lot of the Fresno Convention Center while walking to his car in 2013 and suffered severe injuries. Ultimately the “pothole” he stepped in was only 1/8” to 3/16” of an inch deep and “gently sloped.”[ix]

Is the sidewalk defect that I tripped on “trivial?”

As you can see from the discussion above it is hard to tell until you get into court. The trivial defect doctrine, even though it is not an affirmative defense, will nearly always be an obstacle to recovery in a personal injury trip and fall case. Complicating the issue somewhat is that judges will be making this specific decision, which is something that they don’t do all that often. Politely “teaching” the law to the judge as the evidence is presented part of a good attorney’s job.

If you have further questions about what is or is not a trivial defect please give us a call at (858) 964-2324.

[i] Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388, 132 Cal.Rptr.3d 617 [ii] Kasparian v. AvalonBay Comm. (2007) 156 Cal.App.4th 11 [iii] Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 51 [iv] 164 Cal.App.4th 559 [v] 2017 WL 3326805 [vi] 2011 WL 5079547 [vii] 122 Cal.App.4th 922 [viii] 37 Cal.App.5th 1092 [ix] 2019 WL 1275241


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