The Second District of the Court Appeal recently held that ¾ inch or so sidewalk cracks are “trivial defects,” which do not subject a homeowner’s association or the homeowner’s association management firm to liability.  Cadam v. Somerset Gardens Townhouse HOA was a lawsuit by 63 year tenant who fell when her right foot got caught in the ¾ inch or so walkway separation.  Although the jury found for the plaintiff and found that the homeowner’s association and the homeowner’s association management firm were each 50 percent responsible for her injuries, the trial court and the Court of Appeal granted the defendants’ motion for judgment notwithstanding verdict (JNOV) based on the “trivial defect defense.”

The opinion provide an informative discussion of specifics of the “trivial defect defense” –

“It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property.  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [sidewalk crack less than one-half inch in depth].) This principle is sometimes referred to as the “trivial defect defense,” although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. (Ibid.)  Persons who maintain walkways – whether public or private – are not required to maintain them in absolutely perfect condition. (Ibid.)  … Moreover, what constitutes a minor defect may be a question of law.”   (other citations omitted)

Prior notice of the defects is not an exception to the trivial defect defense.  The Court further stated that the “duty of care imposed on a property owner, even one with actual notice of a defect, does not require the repair of minor or trivial defects. (Caloroso, supra, 122 Cal.App.4th 922, 929.) ‘Minor defects such as the crack in [plaintiff’s] walkway inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable. Thus, [defendant] is not liable for this accident irrespective of the question whether he had notice of the condition.’ (Ibid.)”