Electric scooter rider brought negligence action against city, alleging it created or negligently maintained a defective condition, namely, “a sidewalk uplift” caused by an asphalt patch on the sidewalk, that caused him to fall off his scooter and suffer injuries.
The Superior Court granted city’s motion for summary judgment. Rider appealed.
The Court of Appeal held that:
- Plaintiff, as appellant, was not entitled to supplemental briefing before Court of Appeal affirmed on different basis than trial court’s ruling;
- Court of Appeal allowed parties to submit supplemental briefing;
- City did not have actual notice of alleged “dangerous condition” caused by asphalt patch, as would be required for it to be liable;
- City’s amended interrogatory responses as to whether it placed the patch did not create a triable issue of material fact on issue of whether city had actual notice of the patch; and
- Trial court was not permitted to rely on inadmissible evidence offered by rider to create a triable issue of fact, on grounds rider would be able to cure defects at trial.