Woodland Hills personal injury attorney Barry P. Goldberg gets regular case inquiries about sidewalk trip and falls. Sometimes the injuries can be devastation. However, many potential clients assume that since the dangerous condition was on a public sidewalk, the City has to be liable. Not so fast! Not only do you have the burden of proving that the dangerous condition was substantial, but you must show that the public entity “knew or should have known” about the condition.
Among personal injury attorneys, there are varying approaches to proving “Notice.” It is the rare case that a member of the public actually made a prior complaint about the particular dangerous condition that caused the injury. Further, complaints are not always accurately noted and cannot be easily retrieved. Sometimes, you get lucky and can actually obtain a “survey” which notes the exact spot for repair. However, what if the dangerous condition is something like the metal stub from a recently knocked over street sign? That can be a very dangerous tripping hazard.
Government Code Section 835 states that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Emphasis added.)
Section 835.2 defines constructive notice as, “A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Emphasis added.)
“A claim for constructive notice has two threshold elements.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320.) “[C]onstructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection. . . . [I]n determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” (State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400.)
Courts have found that “Evidence of a condition of that nature, without more, is not a prima facie showing that the [post base] was obvious.” (Heskel, supra, 227 Cal.App.4th at p. 320.) The Courts further conclude, “While his evidence suggests that the [post base] was above ground and visible, it does not demonstrate that it was of a substantial size or so visible from public thoroughfares that the City, in the exercise of due care, should have become aware of it and taken corrective action to cure it.” (Id. at p. 321.)
As a practical matter, what does this all mean to your trip and fall case against the City? Well, we recommend that records be subpoenaed from the department responsible for the particular sign that was knocked over (for instance, department of transportation or safety). Also, there may be a record of removal of the sign by a sanitation worker or other public employee. In addition, it is important to understand the more casual public employees’ frequency in the particular area. Are there meter readers? Do the police have foot patrols? Are there actual cameras with video from a nearby store which may show a public employee walking over or by the site?
As you can see, there are ways around the statutory notice requirements—-but, they are not so easy! We recommend that anyone injured on public property seek immediate counsel with an experienced personal injury attorney who has intimate knowledge of the notice requirements and who can formulate a plan to prove notice.
