On a bright sunny morning, as Mrs. Josephine Caloroso was walking past the home of Larry Hathaway, she tripped over a slight crack in the sidewalk and was injured. She and her husband brought this premises liability and loss of consortium lawsuit against Hathaway.

They alleged negligence for failing to warn of the allegedly dangerous sidewalk condition. Evidence presented at the trial show the elevation along the edge of the sidewalk crack was from zero to 0.4 (or 7/16) of 1 inch.

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Homeowner Hathaway argued this was a minor, normal sidewalk crack, which should not result in negligence liability for Caloroso’s injury.

If you were the judge would you rule homeowner Hathaway is liable for the injury to Caloroso allegedly caused by the crack in his sidewalk?

The judge said no!

“Persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition,” the judge explained.

“Where reasonable minds can reach only one conclusion, that there was no substantial risk of injury, the issue is a question of law,” he continued.

The facts of this case show the sidewalk was clearly visible, but there was a slight crack in that sidewalk, the judge emphasized.

Unless there was further evidence, not presented in this case, such as a slippery surface, impaired visibility, or debris on the surface, homeowner Hathaway appears not to have been negligent in maintaining his sidewalk, which had a minor crack, the judge ruled.

In this slip-and-fall case, where the sidewalk crack was minor, there was no duty to repair or warn of danger because there was less than a one-half-inch elevation, which, as a matter of law, is trivial, the judge concluded.

Based on the 2004 California Court of Appeal decision in Caloroso v. Hathaway, 19 Cal.Rptr.3d 254.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

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