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Gwendolyn Briscoe v. District of Columbia

March 21, 2013

GWENDOLYN BRISCOE, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia (CAB-7488-10) (Hon. John Ramsey Johnson, Trial Judge)

The opinion of the court was delivered by: Terry, Senior Judge:

Submitted December 11, 2012

Before EASTERLY and MCLEESE, Associate Judges, and TERRY, Senior Judge.

Appellant Gwendolyn Briscoe sued the District of Columbia for negligence, seeking damages for personal injuries allegedly resulting from the District's failure to repair a small defect in the curbstone in front of her home. The trial court granted the District's motion for summary judgment, and appellant noted this appeal. Before this court she contends that the trial court erred by granting summary judgment because there was a genuine issue of material fact as to whether the District had constructive notice of the alleged defect. The District argues in response, first, that the defect was so minor that its failure to repair it was, as a matter of law, not negligent, and second, that there is no genuine issue of material fact as to whether the District had constructive notice. We affirm the judgment.

I

Appellant has lived in a house on Newcomb Street, S.E., since 1982. For "some time," according to her "declaration" filed in the trial court, she "ha[s] not had occasion to cross the curb directly in front of [her] home" because the block is usually "heavily parked" with cars. However, on January 21, 2010, appellant was attempting to cross the street in front of her home to reach her own parked car when she tripped and fell because of a defect in the curbstone. That defect, which had existed for "a long period of time," was allegedly the result of the deterioration and erosion of the curbstone "for a period of years."

Because of her resulting injuries, appellant filed this civil action against the District of Columbia. The District moved for summary judgment, and appellant filed an opposition. The trial court, after a hearing, granted the District's motion, ruling that the "record evidence reveals no genuine issue of material fact that the [District] had or could have had either actual or constructive notice of the purported dangerous condition that allegedly caused Plaintiff's injury." The court reasoned that "nothing in the record . . . indicates that the purported deteriorated curbstone was known to the city, observed by others, or that the gravity of the deterioration was so open and obvious as to warrant knowledge of the defect." After examining "the photographs of the curbstone," the court declared that the alleged defect was "very small, appearing to be an indentation along the upper edge of the curb, running about two to three inches at most and about one inch deep." It concluded that the flaw "was so insignificant that no reasonable juror could find that the District had constructive notice of a defect that would need to be repaired." Accordingly, the trial court ruled that further discovery in this case was unnecessary, notwithstanding appellant's oral request for such discovery during the hearing on the motion. The court then granted the District's motion for summary judgment.

II

This court reviews de novo the trial court's grant of summary judgment. E.g., Clampitt v. American University, 957 A.2d 23, 28 (D.C. 2008). "Our standard of review is the same as the trial court's standard for initially considering a party's motion for summary judgment; that is, summary judgment is proper if there is no issue of material fact and the record shows that the moving party is entitled to judgment as a matter of law." Id. (citing Super. Ct. Civ. R. 56 (c)). The District contends that the judgment should be affirmed for two independent reasons: first, that the defect in the curbstone was so minor that its failure to repair it was, as a matter of law, not negligent; and second, that it was under no obligation to undertake any repair because it had no notice, either actual or constructive, of the defect. We address each argument in turn.

A. No negligence as a matter of law

We note first the well established rule that, "although the District of Columbia has a duty to maintain its streets in a reasonably safe condition . . . it is not an insurer of safety of those who utilize its streets and sidewalks." Rajabi v. Potomac Electric Power Co., 650 A.2d 1319, 1322 (D.C. 1994) (citations omitted). Indeed, this court has "judicially recognized what pedestrians living in urban areas know from their own experience; namely, that minor [defects] are not an unusual condition for city sidewalks and are in fact what might be called a very prevalent condition." Proctor v. District of Columbia, 273 A.2d 656, 658 (D.C. 1971).

It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise, the city would be held liable upon a showing of a trivial defect.

Id. (citing Barrett v. City of Claremont, 41 Cal. 2d 70, 73, 256 P.2d 977, 980 (1953)).

Thus, even if the District has notice of an alleged defect, it is entitled to judgment as a matter of law when the alleged defect that caused the plaintiff's injury was insignificant in nature, such as a one-half inch gap between a median strip and a curb, Williams v. District of Columbia, 646 A.2d 962, 962-963 (D.C. 1992), or a brick protruding one-quarter of an inch above the level of the sidewalk, Proctor, 273 A.2d at 659. The plaintiff in Williams, for example, sought damages for injuries she sustained in a fall that resulted when the heel of her shoe became lodged between the brick portion of a median strip and the adjacent curb; the space in which she caught her heel was approximately one-half inch wide. The record, however, including photographs of the alleged defect, lacked any evidence that the condition of the street or the median strip was defective. We affirmed the judgment for the District, holding that "[a]ppellant's conclusory allegation [that the ...


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