"Persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects." These words from a California court decision nicely sum up the essence of the trivial defect doctrine which helps to guide California courts in how they handle the myriad of slip-and-fall cases that come before them. But pity the poor California landlord who must anticipate what a court might say about possible defects on his or her premises. Are the defects trivial and obvious, or might they be something for which the landlord could be held liable?

Thanks to Harold Justman, successor editor to Robert Bruss’s California Real Estate Law newsletter, for bringing to our attention a recent case (Kasparian v. Avalonbay Communities) that shows what a slippery and unpredictable issue this can be.

In October of 2004, Christine Kasparian, a resident at the Avalonbay Apartments, was involved in a most unfortunate accident. An 80 year old, who was using a cane at the time, "fell to the ground as she walked along the brick paver walkway from her apartment en route to a trash receptacle." Her injuries were serious: a cervical fracture and broken teeth.

According to the court record, "Kasparian always followed the same path from her apartment to reach the trash receptacle next to the elevator. As a cautious person, Kasparian looked where she was walking. Prior to the date of her fall, she had noticed the drains in the walkway and specifically the drain in question. She did not recall ever having a problem with that particular drain."

Approximately one year later, a lawsuit was filed on behalf of Kasparian against the landlord charging negligence and premises liability. In particular, the suit charged that the recessed drain where she fell was a dangerous condition. The landlord moved for summary judgment (essentially, dismissal) because "(1) the drain was installed .25 inch below the pavement in compliance with industry standards; (2) the deviation of .25 inch on the pedestrian walkway constituted a trivial defect; and (3) the contrast between the drain and the adjacent pavers and [Kasparian’s] admitted awareness of the drain make the condition open and obvious." The trial court granted the motion, concluding "Landlord did not owe Kasparian a duty, because the evidence demonstrated the drain was a ‘trivial defect’."

The trial court heard testimony from expert witnesses on both sides. Unsurprisingly, they disagreed in their conclusions. Essentially, one said the condition was no big deal, the other said it was very hazardous. Their physical factual findings, though, were almost identical. Their measurements as to how deeply the drain was recessed differed by only 1/16 of an inch. In making its ruling, the trial court relied in part on photos submitted by the defense expert.

The summary judgment ruling was appealed in California’s second appellate district. There, the court noted that the trivial defense doctrine "permits a [trial] court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury [and] provides a check valve for the elimination from the court system of unwarranted litigation … ." However, while acknowledging that it was appropriate for the trial court to rely in part on the pictures that were presented, the appellate court also maintained that it was appropriate for it [the appellate court] to review those pictures.

The appellate court disagreed with the trial court’s conclusions. "Based on the photographic evidence before the trial judge in this case, we find reasonable minds could differ as to whether this defect was trivial or open and obvious." Hence, the summary judgment was reversed and the case has been sent back for a jury trial.

So there you have it, landlords. You are not responsible for dealing with trivial defects that are open and obvious. What a relief. Now all you have to do is figure out whether or not a court will agree that the defect in question is trivial.

Published: March 13, 2008

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Bob Hunt is a director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at .