MEMORANDUMTO: Peter KingFROM: Jennifer CarsonDATE: 10/31/2016RE: Treeacre Negligence Case

FACTS:On September 18, 2016, at approximately 4:00 P.M., Timothy Treeacre went for a 3 mile run through his neighborhood. Mr. Treeacre runs through his neighborhood 4 days per week, running various routes each day and using the sidewalks a majority of the time. Mr. Treeacre is 65 years old and has been physically active in several different sports and largely considers himself to be a good shape. Approximately 1.5 miles into his 3 mile run, Mr. Treeacre tripped over an uplifted portion of the sidewalk. Mr. Treeacre tried to catch himself but continued tripping, falling forward over the jagged, uplifted portion of the concrete paneled sidewalk, unable to break his fall and fell onto the curb stone, landing full force on his face. A neighbor who witnessed the fall contacted medical aid for Mr. Treeacre and he was transported to a nearby hospital via ambulance. Mr. Treeacre was immediately seen by the triage doctor who determined that he had sustained a broken nose, several broken teeth, and a severely bruised cheekbone. As a result, Mr. Treeacre incurred several dental expenses, emergency room expenses, an ambulance expense, expenses for medications and follow-up appointments, and lost wages from work.

QUESTIONS PRESENTED: Did the City of Costa Mesa dismiss their responsibility to repair the sidewalk such that their negligence caused Mr. Treeacre to fall and injure himself on the sidewalk?

SHORT ANSWER:Yes. The sidewalk that Mr. Treeacre tripped over is located in the right-of-way, centered in between two housing communities, not directly located within the parameters that would make it Magnolia Street Homeowner’s Association responsibility to fix the sidewalk.

DISCUSSION:

Is Costa Mesa responsible for maintenance of the sidewalk that Mr. Treeacre tripped over?The sidewalk that Mr. Treeacre tripped over resulting in injury was not directly located within the parameters set forth by the Streets and Highway Code § 5610 that would make it Magnolia Street Homeowner’s Association’s responsibility to have fixed the sidewalk. The sidewalk that Mr. Treeacre tripped over was uplifted as a result of a tree located in the public right of way, the roots pushing through the surface of the concrete and causing the sidewalk to become uplifted. Streets and Highway Code § 5610 sets forth that the owners of lots or portions of lots adjacent to or fronting on any sidewalk shall maintain the sidewalk in a safe and non-dangerous condition. While it could be argued that Magnolia Street Homeowner’s Association may have been required under this code to maintain and fix the sidewalk that Mr. Treeacre tripped over, Streets and Highway Code § 5612 and § 5615 set forth that in the event of a sidewalk in disrepair the owner of the lot fronting the sidewalk may be sent a notice of repair and then if still not corrected, the superintendent of streets shall repair the sidewalk. This further leads us to believe that the City of Costa Mesa is responsible considering that Magnolia Street Homeowner’s Association was never sent a notice of repair. On the other hand, it can also be argued that because the sidewalk was uplifted because of the tree, Magnolia Street Homeowner’s Association could not have been responsible because the tree is located in the public right of way, property dedicated to the City of Costa Mesa and thus likely would not be found negligent (Jones v. Deeter, 152

Cal. App. 3d 799). Also, because the sidewalk that Mr. Treeacre tripped over is most commonly used by the public and not predominantly used as a direct access point for visitors of the property in which Mr. Treeacre resides or used for public access to the property, then it should be concluded that this sidewalk falls within Costa Mesa’s responsibility. What are the elements of negligence?For Mr. Treeacre to be successful in recovering damages from the City of Costa Mesa, it must be shown that Costa Mesa owed Mr. Treeacre and the public a duty to repair the sidewalk and that Costa Mesa in fact, did not repair the sidewalk. It must also be shown that because Costa Mesa did not repair the sidewalk, Mr. Treeacre was directly injured as a result and that Mr. Treeacre was actually harmed and/or injured as a result.

For the first element of negligence, we can see based on the above mentioned codes, Costa Mesa did in fact owe a duty to Mr. Treeacre to have fixed the sidewalk. The roots of the tree pushing through the surface of the sidewalk, the tree being located in the public right of way and property dedicated to Costa Mesa, was not a result of Magnolia Street Homeowner’s Association’s negligence as can be shown in the decision of Jones v. Deeter. Because Magnolia Street Homeowner’s Association could not have been responsible for the reason the sidewalk was in such disrepair, it also could not have been responsible for the repair of the sidewalk. As such, because the tree is located in the public right of way and is the cause of the uplifted sidewalk, the responsibility to repair the sidewalk lies with the City of Costa Mesa.

For the second element of negligence, it can be shown that because the sidewalk was not repaired, the City of Costa Mesa breached its duty to its citizens to protect them from harm by not acting to repair the sidewalk. Because the roots of the tree were pushing through the sidewalk and because this is a process that occurs over a period of weeks, months or even years, it could be reasonably believed that Costa Mesa knew of this problem with this sidewalk and took no action to correct the problem.

As a result of Costa Mesa’s inaction to repair the sidewalk, Mr. Treeacre was injured during a routine run through the neighborhood, injuries which would have otherwise been prevented had the sidewalk been corrected earlier. Mr. Treeacre sustained a broken nose, broken teeth, ambulance, triage, and emergency room expenses as well as follow up expenses and lost wages from work. It can be argued that a reasonable person, having some idea that their inaction to repair the sidewalk would result in such an injury would have acted to repair the sidewalk to prevent injury, actions which were not take by the City of Costa Mesa. By not taking action to repair the sidewalk, Costa Mesa violated Costa Mesa Municipal Code, Ch. Art. 1, §20-6(k) which sets forth that sidewalks shall be maintained free of potholes, cracks, breaks, lifting, or other deteriorated conditions and was effectively negligent.

CONCLUSION:In applying the relevant statutes and case law, Mr. Treeacre has demonstrated that the City of Costa Mesa and no other entity was responsible for the repair of the sidewalk in which Mr. Treeacre tripped over and as a result of Costa Mesa’s negligence, Mr. Treeacre was injured.