By Dean A. Reeves, Esq.
As we travel about over this holiday season, whether it be for shopping or for visits with friends and family, we will rely on the vast network of pathways provided for us by the various public entities throughout California. The many streets, sidewalks, and other paths, designed, built and maintained by these entities, are intended to provide the public with a convenient and safe way for us to reach our respective destinations. However, defects in these public thoroughfares arise, either due to design, construction, or most commonly as a result of wear and tear over time, that may pose a risk of harm to those that utilize these public means of travel. On those occasions where the condition of public property causes or contributes to the harm of an individual, the question arises as to whether the public entity that designed, built or maintained that property is legally responsible for such damages.
What constitutes a “dangerous condition” on public property?
The legal responsibilities for public entities with respect to such injuries is governed by statute, as interpreted and applied by a substantial amount of decisions from the California courts. The recent decision by the Second District for the California Court of Appeal in Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 2021 WL 5231409, adds to this legal authority and provides additional clarification as to the different types of walkways used by pedestrians, and establishes a limitation on a public entities obligations for injuries that occur during use of government property that is considered to be an alley.
Before a public entity can be potentially liable for the damages incurred by the injured individual under the specific circumstances, it must be determined (1) whether the public property “was in a dangerous condition,” (2) whether “the dangerous condition created a reasonable foreseeable risk of the kind of injury which was incurred,” and (3) whether the public entity was negligent. (Cal. Gov. Code § 835.) As defined by the Government Code, a “dangerous condition” exists when the condition of the public property “creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Id. at § 830(a).) Accordingly, the Courts have recognized that not all defects on public property constitute a “dangerous condition,” and that public entities do not have a legal obligation to insure that all public property is entirely free from defects. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 725-726; Whiting v. National City (1937) 9 Cal.2d 163, 165.))
Not all public property should be treated the same.
The question before the Court in Martinez was whether the type of pathway used by a pedestrian played a role in determining whether the existing defect constituted a “dangerous condition” on public property. (Martinez v. City of Beverly Hills, supra, 2021 WL 5231409 at *7.) In affirming the lower court’s decision to grant the defendant City’s motion for summary judgment, the Court of Appeal noted significant differences between a sidewalk and an alley, and given these distinctions found that there is a “different standard for assessing when a defect is ‘so obvious’ to impart constructive notice to a public entity when the defect is located in an alley rather than on a sidewalk.” (Id.)
On July 8, 2016, the plaintiff in Martinez was walking between the offices of her employer by crossing a rear alley that ran parallel to the street when the front edge of her soft-bottomed flip-flop hit a less than two inch deep hole in the asphalt, located at the edge of the concrete swale that ran down the center of the alley. It was determined that that the hole in the asphalt had existed since at least 2014. (Id. at *1-*2.) The Court noted that the alley in question was commonly used by employees to travel between office locations and to access the nearby parking lot. While there was no evidence that the City had actual notice of the alleged defect, on appeal the plaintiff argued that given the amount of time that the condition existed and its “obvious nature” the City had constructive notice as to the existence of a “dangerous condition” on public property, and had failed to correct that defect. (Id. at *4-*5.)
For its part, the City established that it maintains the safety of its alleys through a “pavement management program” conducted every two years by a contractor who inspects all the alleys and prepares a report, which in turn is used by the City to prioritize resurfacing of those alleys. Additionally, the City responds to calls from the public as to potential hazards and determines if any repairs are warranted. As to the alley in question, the City acknowledged that it had not been inspected since 2009. (Id. at *2.)
Ultimately, the Court in Martinez had to determine if the defect in question “was sufficiently obvious that the City should be charged with knowledge of it.” (Id. at *7.) The answer to that question depended upon “the location, extent, and character of the use” of the public property at issue. With respect to sidewalks, the Court noted that they are specifically made for walking by pedestrians, and people should be able to assume that such surfaces are safe without having to keep their eyes down on the lookout for defects. As a result of such intended use and greater danger to pedestrians, a public entity is held to a higher standard to inspect and insure that the sidewalks are free from “all but the most trivial defects.” (Id.)
Why an alley is not like a sidewalk.
As to alleys, the Court considered some important differences. While alleys are certainly used by pedestrians, and that such use is foreseeable, that is not the use intended by the public entity. The designated purpose for alleys is for use by heavy vehicles, such as trash trucks and delivery trucks, to provide services to nearby businesses and residences. (Id.) This led the Court to note some significant differences between sidewalks and alleys. First, due to the way in which the alleys are used, the surface “degrades far more quickly than the surface of sidewalks.” Second, as result of that wear and tear, the cost of maintenance to keep such alleys safe for pedestrians is much higher. Third, due to the much lower use of alleys by pedestrians, as compared to sidewalks, there is less risk of injury. Given these differences, forcing a public entity to maintain alleys with the same level of scrutiny as sidewalks, would impose a significant burden and cost with much less benefit to the public. As a matter of public policy, the appellate court was not willing to impose such a burden on public entities. Ultimately, the Court found that “the universe of ‘obvious defects’ for alleys is smaller than the universe of ‘obvious defects’ for sidewalks,” and that the defect encountered by the plaintiff in the alley did not constitute a “dangerous condition” on public property. (Id.)
Therefore, if your trip to the local store or visit to your friend’s house for dinner includes a walk across an alley, take a bit more care in traversing that particular part of your journey. If you encounter a defect in that alley that results in a fall and injuries, you may find that while that same defect located in a sidewalk would constitute a dangerous condition on public property and thus make the public entity potentially liable for your damages, a different outcome is likely when it is found in an alley. As the Court in Martinez concluded, “alleys are different.” (Id. at *9.)
Dean A. Reeves is a Special Counsel at Bradley & Gmelich LLP with over 25 years’ experience in civil and business litigation. Dean has represented individuals and businesses in state and federal trial and appellate courts, arbitration proceedings, and before various administrative agencies. Dean’s areas of practice have included lender liability, construction defect litigation, enforcement of mechanic’s liens, real property disputes, and intellectual property, involving claims for copyright and trademark infringement as well as misappropriation of trade secrets.
Dean received his Juris Doctor degree in 1990 from the University of Southern California Law Center and graduated cum laude from California State University Northridge in 1987, with a Bachelor of Arts in Economics. While at USC, Dean served as a member on the Computer Law and Major Tax Planning Journals. He also served as a judicial extern for the Honorable Judge David V. Kenyon at the United States District Court for the Central District of California. Dean was admitted to the California bar in 1990 and is also admitted to practice before the United States District Court (all California districts) and the United States Court of Appeals for the Ninth Circuit. firstname.lastname@example.org