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Mind The Gap! Relief for Property Owners on Slip and Fall Liability

Neighbor & Nuisance Disputes and Real Estate Law by Peter N. Brewer, Esq.

Generally, owners have a duty to maintain their property in a safe condition, and repair any known dangerous conditions.  From a liability standpoint, the issues that concern landowners are 1) what condition is safe enough and 2) did they know about the potentially dangerous condition?

In the case of Cadam v. Somerset Gardens Townhouse HOA, Ms. Cadam tripped on a common walkway.  Apparently there was sidewalk separation that her foot got caught in and her fall was so serious that she had to have six surgeries over two and half years.  She was 63 at the time of the accident.

It turns out that there were a few sidewalk separations throughout the complex and the HOA president had tripped over one as well and was aware of the condition. He testified that he thought the separations were probably dangerous if a half inch or more.

Based on this fact pattern alone, the jury awarded Ms. Cadam $1.3M in damages and said the HOA and their property management company were equally liable.  The HOA and property manager filed a motion asking the judge to overturn the verdict, and it was granted.

The judge ruled “no reasonable person could find this was not a trivial defect looking at the photographs…”

Cadam appealed and the appellate court agreed with the lower court judge, citing the “trivial defect defense” doctrine in California.

Property owners are not liable for damages caused by “minor, trivial, or insignificant defects” on their property. [Caloroso v. Hathaway (2004).]  The rationale is simply that owners (usually municipalities) cannot reasonably maintain walkways and sidewalks in absolutely perfect condition.    One case even cites decisions finding that any defect from ¾’s of an inch to 1½ inches are trivial as a matter of law. [Fielder v. City of Glendale (1977).]

In Ms. Cadam’s case, the sidewalk gap was somewhat less than an inch, and therefore trivial as a matter of law.  The Court concluded it did not matter whether or not the owner had knowledge of this condition.

Cadam v. Somerset Gardens Townhouse HOA (October 28, 2011) 2011 DJDAR 15833.

If you or others you know of manage real property, it’s wise to have regular inspections and document the conditions that exist so that the owner can repair the genuinely hazardous conditions.  For more risk management advice, I invite you to engage one of the knowledgeable real estate attorneys here at Brewer Offord & Pedersen LLP.

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