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Jennifer Albera v. City of Sacramento

September 18, 2012

JENNIFER ALBERA, PLAINTIFF AND APPELLANT,
v.
CITY OF SACRAMENTO, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34200800022944CUPOGDS)

The opinion of the court was delivered by: Raye , P. J.

Albera v. City of Sacramento CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In the wee hours of an August morning in 2007, plaintiff Jennifer Albera (Albera) walked arm in arm with a friend between house parties. Plaintiff stubbed her toe on a concrete step attached to private property and adjacent to a public sidewalk maintained by defendant City of Sacramento (City). Albera filed suit against City, alleging a dangerous condition of public property. City filed a motion for summary judgment. The trial court granted the motion, finding Albera failed to present a triable issue of fact regarding City's ownership or control of the step. Albera appeals, challenging the trial court's finding. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In her first amended complaint, Albera states she was walking along the sidewalk on a summer evening when she tripped on the step, fell, and suffered an injury. She alleges the step is the size of a small landing connected to real property owned by Midtown Partners, LLC. The step extends a substantial distance into the public sidewalk, which is owned and controlled by City. According to Albera, the step is made of material similar to that of the sidewalk and is "visually indistinct from the sidewalk for pedestrians." Therefore "as a substantial albeit unobtrusive obstruction on, and built into, the sidewalk as a part of the sidewalk, it foreseeably constitutes a substantial tripping hazard for pedestrians."

City moved for summary judgment. In support, City introduced Albera's deposition testimony regarding the incident. Albera admitted drinking as she walked from house party to house party in downtown Sacramento. Albera walked arm in arm with a friend, part of a larger group, and as she looked back for someone she stubbed her toe and shattered her leg. She had previously walked in the area on at least 10 prior occasions without incident.

City also submitted two declarations in support of its motion. Roy Heavenston, City's supervising surveyor, submitted a declaration stating the step in question was not located within the public right-of-way.

In a second declaration, City's operations general supervisor, Gabriel Morales, stated his review of the records revealed only one prior trip-and-fall accident at the site, in 2000. The sidewalk was subsequently inspected and determined to be in need of repair. The records state that the adjacent property owner requested the sidewalk repair include the construction of a step. City hired a contractor to complete the project. Morales inspected the sidewalk at the site and determined the step was not within the public right-of-way, and according to Morales, "it would not have been [City's] custom or practice to perform any maintenance of the step." Morales could find no records indicating City had "maintained the step." Based on his experience and his review of the records, Morales opined that the step was constructed by a private contractor and not by City employees. Any construction outside City's right-of-way would have been at the property owner's request and maintenance would be the property owner's responsibility.

In opposing the summary judgment motion, Albera submitted a declaration by Kimberly Hawthorne, a safety consultant and expert witness specializing in slip-and-fall and premises liability. Hawthorne examined the scene and found the step protrudes two to three feet into the sidewalk and is constructed of similar material. In Hawthorne's opinion, the lack of conspicuity of the step at night created an unreasonable risk of harm. This danger was not obvious to reasonable users of the sidewalk, "but it should have been clear to a professional installing the step/landing."*fn1

The trial court held oral argument on the motion. At argument, Albera claimed Morales's declaration revealed City hired the contractor to repair and construct both the sidewalk and the step. According to Albera, any ambiguity in Morales's declaration should be construed in her favor.

The court disagreed, noting Morales's declaration stated the sidewalk needed repair and the owner of the step requested that the repair include the step. City then hired a contractor, who repaired the sidewalk and constructed the step as requested by the owner. The court found no ambiguity in Morales's declaration.

The court issued a tentative ruling granting City's motion for summary judgment. The court found City established that the step is not part of the public right-of-way and is not maintained by City. The step was constructed during a City-authorized sidewalk repair by a private contractor at the request of the property owner. Albera offered no evidence other than the similarity in appearance of the sidewalk and step to support that City constructed and maintained the step. Instead, City presented evidence that "it hired the independent contractor to repair the sidewalk, and that the construction of the step was requested separately by the property ...


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