Villa Romano HOA

Show Headnotes / Syllabus

COUNSEL:
Law Offices of Steven M. Klugman and Steven M. Klugman for Plaintiff and Appellant.

Early, Maslach, Price & Baukol and James Grafton Randall for Defendant and Respondent.

JUDGES: Opinion by Goodman, J., * with Boren, P. J., and Nott, J., concurring.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. [***2]

OPINIONBY: GOODMAN

OPINION: [*1324] [**367]

GOODMAN, J. * --Ann Alpert (Alpert) appeals from the judgment of nonsuit entered in favor of respondent Villa Romano Homeowners Association (VRHA) at the close of Alpert's case-in-chief. Alpert's complaint alleged that she suffered severe injuries when she tripped and fell on the upturned and broken sidewalk adjacent to the condominium complex managed by VRHA. n1 In this appeal [**368] Alpert asks that we determine if the owner and possessor of property owes a duty to warn or protect pedestrians from allegedly dangerous conditions known to be present. We conclude that there is such a duty and that the trial court erred in granting the defense motion for nonsuit made at the close of Alpert's case-in-chief.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
n1 Alpert had alleged causes of action against the City of Los Angeles and County of Los Angeles as well as VRHA. The claims against the governmental entity defendants were resolved prior to trial. The County of Los Angeles was dismissed; a good faith settlement was entered with the City of Los Angeles.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***3]

FACTUAL AND PROCEDURAL HISTORY

In the late morning of July 27, 1992, Alpert, then 69 and in good health, took her four-year-old dog, BJ, a poodle weighing approximately eight pounds, for a walk near her home in Marina del Rey. She had BJ on a leash. Alpert walked her dog several times a day, but had never fallen before while walking him. This day, on the way home, she passed in front of the VRHA condominium property (the property), which is near the condominium complex in which she resided. The weather was dry and clear; the summer sun was overhead. Alpert's walk ended when one of her feet came in contact with an upturned, jagged piece of sidewalk, causing her to lose her balance and fall, face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk.

The fall knocked the wind out of her. In the fall, Alpert fractured her right wrist, fractured and lacerated her left knee, broke her fourth and fifth ribs, and sustained a large hematoma in the area of her right breast. She sought medical attention for her injuries, eventually having surgery to repair her left knee. During her recovery from the fall, she contracted pneumonia. [***4] At the time of trial, she was unable to walk more than a block without pain, and was using a wheelchair to go longer distances.

Luz Enriquez (Enriquez) had been the gardener for VRHA for 20 years. He worked at the property three times each week. In addition to performing [*1325] gardening services in the area of the property between the condominium buildings and the sidewalk, including the lawn, which he routinely mowed, he did similar work in the area between the sidewalk and the curb. He routinely removed leaves and other debris from the sidewalk, including removing such material that accumulated from time to time in the crack at the location of the upturned sidewalk. He also watered the vegetation on both sides of the sidewalk, utilizing the sprinklers which VRHA had installed in both areas. Enriquez was aware of the break in the sidewalk and recalled that it had been there for a few years prior to the date of Alpert's fall.

Bernardo Segala had been hired by VRHA to trim trees on its property. During the year 1992 and prior to Alpert's fall, at the request of VRHA he trimmed trees on the lawn between the sidewalk and the condominium property and on the portion of the lawn [***5] between the sidewalk and the street.

John Pettijohn, who had expertise in concrete repairs, measured the difference in elevation caused by the break in the sidewalk at the scene of the fall at between three-fourths of an inch and one inch.

Elihu Crane, a resident of VRHA, was a member of its board of directors from 1990 through April 1992, and president of its board of directors for part of that time. During that two-year period there was no [**369] person or committee of the board which had responsibility for inspecting the sidewalk in front of the property. VRHA's view was that the City of Los Angeles (the city) controlled the sidewalks and all VRHA needed to do was to keep the sidewalk clean.

Judith Crane was in charge of the gardening committee of the VRHA. She inspected the property shortly after becoming chairman of that committee in the summer of 1992. She had been aware for some time of the existence of cracks in the sidewalk in the area in which Alpert fell and of other cracks in the sidewalk which ran along the property.

Dr. Stephen Wexler, a licensed civil engineer and licensed general contractor, testified as an expert witness at Alpert's request. Dr. Wexler [***6] had experience in building concrete structures, including sidewalks, and in landscaping for the projects he built. Dr. Wexler also had expertise in determining the cause of sidewalk damage from root structures and root growth and expertise regarding human factors in relation to premises liability. Dr. Wexler inspected the scene of the fall on several occasions. He observed that [*1326] there was mature vegetation on the property, including pine trees (some of which were 100 feet tall) between the sidewalk and buildings on the property, and bottlebrush trees in the area between the sidewalk and the street curb. In his opinion, the root of a pine tree had caused the sidewalk to be uplifted and to break. This opinion was confirmed by his observation of 15 to 20 sidewalk cracks in the area, of which seven or eight had caused serious distortions in the sidewalk in the form of uplifted panels of concrete or of cracks in panels which had been uplifted. There was a second such root-caused cracking and tilting within 15 feet of the scene of Alpert's fall. He had observed that roots of pine trees can grow in length to be as much as four times the height of the tree itself. He explained [***7] that tree roots seek out the area under the sidewalk because water tends to collect there. He noted that the sprinklers at the property water the sidewalk as well as the lawn and other vegetation.

In Dr. Wexler's opinion, the sidewalk defect at the location of Alpert's fall had existed for years prior to the fall and had been caused by the progressive growth of a subterranean tree root under the sidewalk. He noted that the area of greatest angular uplift in the sidewalk was adjacent to the lawn, indicating in his opinion that the root that caused the uplift had come from a tree growing on the lawn as the root sought moisture. He explained that roots taper down in size the farther from the tree they grow. It was also his opinion that the growth of the trees and their root systems had been enhanced by the fertilizing, watering, and trimming of the trees, which VRHA had done on its property. Further, the roots remained near the surface due to the very hard-packed soil in the area, thus increasing the likelihood of cracking the sidewalk.

On cross-examination, Dr. Wexler testified that it was unlikely that the root that had caused the sidewalk at the point of Alpert's fall to be upturned [***8] and to break had come from a tree in the area between the sidewalk and the street as roots of the bottlebrush trees planted in that area were smaller than those of the pine trees. Rather, it was his opinion that the root which had caused the sidewalk defect had come from a tree growing on the main lawn.

At the conclusion of Alpert's case-in-chief, VRHA made a written motion for nonsuit. During argument on that motion, [**370] Alpert's motion for leave to reopen was denied. The court granted the motion for nonsuit, after which Alpert filed a timely appeal. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 We construe the dismissal of the jury upon the granting of the motion for nonsuit as a termination of the action as to all defendants. It is proper, therefore, to treat the appeal as an appeal from the judgment which necessarily followed. (See Mikialian v. City of Los Angeles (1978) 79 Cal. App. 3d 150, 153 [144 Cal. Rptr. 794]; Graski v. Clothier (1969) 273 Cal. App. 2d 605, 607 [78 Cal. Rptr. 447].)

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*1327] [***9]

CONTENTIONS ON APPEAL

Alpert contends the trial court erred (1) in concluding that VRHA, as owner of the property, owed Alpert no duty of care, (2) in refusing to permit Alpert to reopen to cure any defect that resulted in the nonsuit, (3) in refusing to permit Alpert to make offers of proof of certain evidentiary matters, and (4) by excluding evidence of knowledge of the condition of the sidewalk prior to the fall on the part of the board of directors of VRHA. n3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 Alpert also sought review of the trial court's refusal to permit a representative of the city to testify. Resolution of that evidentiary matter is not necessary on this appeal. We make further reference to this matter in footnote 10, post.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

DISCUSSION

1. Standard of review.

^CA(1)(1) ^HN1

In reviewing a judgment entered upon a grant of a motion for nonsuit after the close of the plaintiff's case-in-chief (Code Civ. Proc., § 581c [***10] ), n4 the appellate court reviews the entire record of the trial court (Kidron v. Movie Acquisition Corp. (1995) 40 Cal. App. 4th 1571, 1581 [47 Cal. Rptr. 2d 752]) and views the evidence in the light most favorable to appellant. (Freeman v. Lind (1986) 181 Cal. App. 3d 791, 799 [226 Cal. Rptr. 515].) We do not weigh the evidence or consider the credibility of the witnesses who have testified; rather we are required to accept as true the evidence most favorable to the plaintiff, disregarding conflicting evidence. (LaMonte v. Sanwa Bank California (1996) 45 Cal. App. 4th 509, 517 [52 Cal. Rptr. 2d 861].) ^HN2

" ' "The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." ' " n5 (Freeman v. Lind, supra, 181 Cal. App. 3d at p. 799.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n4 At the time of trial in this matter, Code of Civil Procedure section 581c, subdivision (a) provided: "After the plaintiff has completed his or her opening statement, or the presentation of his or her evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit."

The section was amended in 1998 (Stats. 1998, ch. 200, § 1) in a technical manner not relevant to the instant case. [***11]

n5 VRHA correctly points out that the doctrine that a scintilla of evidence creates a sufficient evidentiary basis to reverse a judgment of nonsuit has been rejected. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 420, p. 481.) While that is a correct statement of the law, factually Alpert overcame that threshold for reasons we discuss in the text.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*1328]

This healthy skepticism of removing factual questions from juries is inextricably bound to the California Constitution, which preserves "inviolate" the right to trial by jury. n6

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n6 California Constitution, article I, section 16 provides, in part: "Trial by jury is an inviolate right and shall be secured to all. . . ."

This right extends to factual questions only; issues of law are triable by the court. (Evid. Code, § 310, subd. (a); Code Civ. Proc., § 589, 591, 592.) The right to trial by jury guarantees that right in actions triable by jury at common law, including claims for damages for injuries to persons. (See generally 7 Witkin, Cal. Procedure, supra, Trial, § 89 et seq.)

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***12] [**371]

2. The trial court's ruling.

At the conclusion of Alpert's case-in-chief, VRHA presented a written motion for nonsuit to the court and counsel. n7 ^CA(2)(2) ^HN3

Such a motion has the effect of a demurrer to the evidence: It concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiff's case. (See Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal. App. 3d 92, 98 [253 Cal. Rptr. 470].) A judgment of nonsuit is an involuntary dismissal (Costa v. Regents of University of Cal. (1951) 103 Cal. App. 2d 491, 494 [229 P.2d 867]) on a motion by a defendant who contends the plaintiff is unable to prove its case at trial (Doria v. International Union (1961) 196 Cal. App. 2d 22, 32 [16 Cal. Rptr. 429]). ^HN4

In reviewing a judgment of nonsuit, we look at the entire record. (Kidron v. Movie Acquisition Corp., supra, 40 Cal. App. 4th at p. 1581.) We consider grounds [***13] which were both advanced by the moving party and ruled on by the trial court. n8

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n7 In its written motion for judgment of nonsuit, VRHA contended that (1) the defect in the sidewalk was trivial as a matter of law, (2) Alpert had failed to establish that the cause of the sidewalk defect was a root growing from VRHA's property, and (3) VRHA owed no duty to pedestrians such as Alpert, but only to the city, under Streets and Highways Code section 5610.
n8 There is a split of authority over whether we may consider grounds argued by the defendant, but not relied upon by the trial court, in granting the motion. Some Courts of Appeal, including this division, have held that appellate review is limited to those grounds relied upon by the trial court, the theory being that we only need examine those grounds which a plaintiff may have been able to correct had they been called to its attention (e.g., DeVaughn Peace, M.D., Inc. v. St. Francis Medical Center (1994) 28 Cal. App. 4th 454, 459 [33 Cal. Rptr. 2d 459]; Walker v. Porter (1974) 44 Cal. App. 3d 174, 177 [118 Cal. Rptr. 468]). Other courts have taken the view that a judgment of nonsuit can be sustained on any ground specified in the motion, even if not relied upon by the trial court (e.g., Saunders v. Taylor (1996) 42 Cal. App. 4th 1538, 1542, fn. 2 [50 Cal. Rptr. 2d 395], and cases there discussed). See also Adkins v. State of California (1996) 50 Cal. App. 4th 1802, 1809, footnote 7 [ 59 Cal. Rptr. 2d 59].

The source of this debate is the following language from Lawless v. Calaway (1944) 24 Cal. 2d 81 [147 P.2d 604] (Lawless): "The correct rule is that grounds not specified in a motion for nonsuit will be considered by an appellate court only if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion. This rule is complementary to the requirement that a party specify the grounds upon which his motion for nonsuit is based." (Id. at p. 94; accord, Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal. App. 3d 860, 868 [86 Cal. Rptr. 359].) The rationale for Lawless is that, on a motion for nonsuit, the plaintiff is to be given the opportunity to cure the defect in its case. To this end, the court is required to hear offers of proof and grant a motion to reopen if timely made. (Eatwell v. Beck (1953) 41 Cal. 2d 128, 133 [257 P.2d 643] [one of the chief objects of a nonsuit motion is to point out to plaintiff the defects in its case so that they may be remedied and the case decided on its merits].)

The articulation of the Lawless rule has not prevented the split of authorities as discussed above: whether, on review of a judgment of nonsuit, the appellate court looks only at the reason or reasons stated by the trial judge in granting the motion, or at any reason advanced by the moving party in the trial court. In either situation, the appellate court looks also at the problem of legal preclusion--whether, as a matter of law, there is no basis for the plaintiff's claim. In such a circumstance, affirmance of the judgment of nonsuit is appropriate even if that ground was not advanced below. It is the issue of legal preclusion that was the principal focus of the trial court in reaching its ruling below.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***14] [*1329] [**372]

^CA(3a)(3a) The record in this case clearly shows that the trial court weighed the evidence and erred as to the applicable law. Thus, the trial court stated: "Dr. Wexler testified that he was not sure where the roots came from which caused the elevation. . . . [A]nd the law seems to indicate that the ambit of liability does not include the abutting land owners but includes the city for--the city owing the duty to the third person. . . ."

This selection from the record by the trial court was inapposite. The record reveals substantial testimony by Alpert's expert witness different from that relied on by the trial court and quoted above; testimony which, when viewed in accordance with principles applicable to motions for nonsuit, provides factual support for Alpert's legal contentions substantial enough to withstand such a motion. Thus, Dr. Wexler testified that the cause of the uplifted and cracked sidewalk was the root of a tree growing on VRHA's property. While he would not rule out the possibility that the particular root came from another location as he had not dug up the lawn all the way to the particular suspected, "mature" pine tree, it was his expert opinion [***15] that a tree growing on VRHA's lawn was the source of the destructive root. He also testified that the trees planted in the area between the sidewalk and the street were of a different type and had characteristically smaller roots. Other witnesses testified to the size of the hazard caused by the uplifted piece of sidewalk which the tree root had created and to VRHA's prior notice of the hazardous condition of the sidewalk. The trial court did not view the evidence adduced by plaintiff in the manner required when analyzing evidence in ruling on a motion for nonsuit made at the conclusion of a plaintiff's case-in-chief. (Freeman v. Lind, supra, 181 Cal. App. 3d at p. 799.) [*1330]

The other aspect of the trial court's ruling was its conclusion that VRHA did not owe a duty of care to Alpert. As we next discuss, this ruling was also error.

3. Whether VRHA owed a duty to pedestrians.

The fundamental legal issue raised by the judgment of nonsuit is whether VRHA as landowner and party in possession and control owed a duty to pedestrians such as Alpert to either warn them of a dangerous condition of the premises or repair it. We will conclude that such a [***16] duty was owed under the circumstances present in this case. n9

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n9 As indicated in this opinion, ^HN5

the existence of a duty of care is a matter of law. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 678 [25 Cal. Rptr. 2d 137, 863 P.2d 207]; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 125 [211 Cal. Rptr. 356, 695 P.2d 653].) ^HN6

The foreseeability of a particular plaintiff's injury is a question of fact. (Isaacs, at p. 126.) ^HN7

The standard to be applied to determine if the duty has been met is whether the property owner has acted in management of the property as a reasonable person in view of the probability of injury to others. (Rowland v. Christian (1968) 69 Cal. 2d 108, 118-119 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) The answer to that question will be determined on retrial.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***17]

a. Authorities prior to Alcaraz v. Vece.

The Legislature and the courts have addressed the responsibilities, if any, of possessors of land abutting sidewalks. We begin our analysis with Civil Code section 1714, subdivision (a), which makes a possessor of land subject to the general negligence standard of that section.

^HN8

Civil Code section 1714, subdivision (a) provides: "Every one is responsible, not only for the result of his willful acts, but also for an [**373] injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury on himself."

^CA(4)(4) ^HN9

It is appropriate to depart from this standard only when there are clear public policy reasons for doing so. In making that determination, a court must weigh the following factors: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff [***18] suffered injury, (3) the proximity of the connection between the defendant's conduct and the injury sustained, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community from imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian, supra, 69 Cal. 2d at pp. 112-113.) [*1331]

^CA(3b)(3b) ^HN10

"The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . ." (Rowland v. Christian, supra, 69 Cal. 2d at p. 119.)

In addition to Civil Code section 1714, subdivision (a), the Legislature has enacted Streets and Highways Code ^HN11

[***19] section 5610, which provides: "The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto."

This statute places on the abutting property owner the duty to maintain the sidewalk. n10 ^HN12

This statutory duty has been held not to impose, by itself, a duty of care upon the abutting landowner for the safety of persons using the sidewalk, [***20] but rather a duty owed to the city.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n10 Streets and Highways Code section 5610 is one of several statutes codifying responsibilities with respect to maintenance and repair of sidewalks. Section 5611 gives to the superintendent of streets the authority to notify the abutting owner of the need to repair the sidewalk. Section 5615 provides that the superintendent of streets may repair the sidewalk if the abutting owner does not and assess that cost to the abutting owner. That amount may result in a lien against the property. (Sts. & Hy. Code, § 3525 et seq.)

In this case, Alpert's attempt to introduce evidence regarding the absence of notice to the city concerning defects in the sidewalk was rejected. Alpert did give timely notice of intention to call the witness through whose testimony this and other matters were to be established. Whether the witness was competent to testify to all of the subjects which Alpert indicated in her offer of proof is a matter for consideration by the trial court in the course of proceedings on the retrial.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***21]

Division Seven of this court discussed the relationship of Streets and Highway Code section 5610 to ordinary negligence principles in the course of its opinion in Jones v. Deeter (1984) 152 Cal. App. 3d 798 [199 Cal. Rptr. 825] (Jones). There, plaintiff Jones tripped on a break in a sidewalk, allegedly caused by the roots [**374] of a tree growing in a parkway maintained by the owner of the adjacent property. The court affirmed the trial court's grant of summary judgment to the property owner, holding that Streets and Highways Code section 5610 was not the basis of a duty of care to [*1332] pedestrians unless the sidewalk defect was the result of the owner's negligence. (Jones, supra, at p. 803.) n11 Under the facts of Jones, any dangerous condition resulting from the trees was attributable to the city as the city had planted and maintained the trees, and the parkway had been formally dedicated to the city by its owner. The court pointed out that the "Sidewalk Accident Decision" doctrine had been developed to distinguish those cases in which the owner of the adjacent property [***22] is not to be held liable in tort to users of the sidewalk unless the owner creates the condition that is a cause of the injury. (Ibid.) In Jones, the owner was not held to have a duty to the pedestrian because the city performed the maintenance of the area of the plaintiff's fall.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n11 As we discuss in the text, Street and Highways Code section 5610 establishes the rule that the owner of the property adjoining the sidewalk has a duty to maintain it. This is a statutory exception to the general rule that the owner of the easement (typically, the local municipality) has the duty to maintain the easement.

^HN13

While section 5610 places the duty to maintain and repair defects in the sidewalk on the abutting landowner, the "Sidewalk Accident Decision" doctrine provides that that duty is not owed to persons who use the sidewalk unless the abutting landowner somehow causes the dangerous condition of the sidewalk. (Schaefer v. Lenahan (1944) 63 Cal. App. 2d 324, 326 [146 P.2d 929]; Jones, supra, 152 Cal. App. 3d at p. 803.) Our holding today is consistent with this long-established doctrine.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***23]

The Jones court was careful to distinguish the factual situation there presented--in which the offending trees were owned and maintained by the City on a dedicated parkway--from the facts of Moeller v. Fleming (1982) 136 Cal. App. 3d 241 [186 Cal. Rptr. 24] (Moeller), in which that court, in reversing a grant of summary judgment, held that an abutting property owner could be held liable if the dangerous condition in a sidewalk had been caused by the roots of a tree owned by that landowner with his knowledge of that condition. (Id. at p. 245.) In Moeller, the offending roots came from a tree on the defendant's property. In distinguishing Moeller in Jones, Division Seven of this court stated: "This case turns on this distinction." (Jones, supra, 152 Cal. App. 3d at p. 804.)

In Williams v. Foster (1989) 216 Cal. App. 3d 510 [265 Cal. Rptr. 15] (Williams), the Court of Appeal reversed a jury verdict in favor of a pedestrian who had been injured when he fell on a public sidewalk which had an uneven surface caused by the roots of a tree planted in a parkway in front of the property owner's [***24] residence. The defendants had moved for nonsuit, which motion the trial court had denied. In reversing the subsequent verdict and ordering that the trial court enter a judgment of nonsuit, the Williams court held that Streets and Highways Code section 5610 was controlling, viz., that the statutory duty placed on adjacent landowners to maintain and repair sidewalks was owed solely to the city and that that [*1333] statute does not impose liability for injuries incurred by rea