Case Name:??? Judith Lachman v. EQR Fresca 2009, dba Equity Residential, et al.
Case No.:??????? 1-14-CV-270666
Motion for Summary Judgment by EQR-Fresca 2009 Limited Partnership (erroneously sued as EQR Fresca 2009 LP, dba Equity Residential; hereafter, ?EQR?)
Plaintiff Judith Lachman (?Lachman?) is a tenant at Mill Creek Apartments (?Apartments?) located at 440 Dixon Landing Road in Milpitas. (Complaint, ?1.)? Defendant EQR owns and manages the Apartments. (Complaint, ?2.)? Mail at the Apartments is delivered to locked mailboxes located near the leasing office. (Complaint, ?4.)? The access path from the parking area in front of the leasing office to the mailbox area passes between two parking spaces. (Complaint, ?5.)? The open area between the two parking spaces is painted with stripes to prohibit parking. (Id.)? The open area between the parking spaces has a low ramp rising from the parking lot level to the curb level, as part of the path to the mailbox area. (Id.)
Plaintiff Lachman suffers from a neurological condition which, among other things, causes here to have impaired balance and weakened/numb lower extremities. (Complaint, ?6.)? Plaintiff Lachman was able to ambulate with the use of forearm crutches. (Complaint, ?7.)
On or about September 18, 2012, plaintiff Lachman parked her car and began walking to the mailbox area, using the path and ramp between the parking spaces. (Complaint, ?8.)? An electric cart, owned by EQR and used by the leasing office, had been parked by an EQR employee or agent in the area between the parking spaces. (Id.)? The parking spaces adjacent to the path were occupied by parked vehicles. (Id.)
Plaintiff Lachman was able to get around the cart and retrieve her mail. (Complaint, ?9.)? As plaintiff Lachman returned to her car, she tried to get around the cart, but tripped on the cart and fell to the pavement causing her dominant right hand to break in two places. (Complaint, ?10.)? Consequently, plaintiff Lachman became unable to use her crutches to ambulate and was confined to a wheelchair. (Complaint, ?11.)? In turn, the inactivity caused atrophy and weakened plaintiff Lachman?s right arm, hand, and lower extremities. (Id.)? Plaintiff Lachman has since struggled to recover her ability to ambulate with crutches, suffering repeated falls and injuries. (Id.)
On September 16, 2014, plaintiff Lachman filed a complaint against defendant EQR asserting a single cause of action for negligence.? On December 12, 2014, defendant EQR filed an answer to the complaint.
On March 2, 2016, defendant EQR filed this motion for summary judgment.
- Defendant EQR?s motion for summary judgment is DENIED.
?An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.? (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.)
In moving for summary judgment, defendant EQR argues it had no duty under the circumstances.? ?As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.? (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.)? In Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27 (Beauchamp), the court wrote, ?There is no duty to warn of an obvious danger but the possessor of land does have a duty to warn an invitee not only of conditions known by him to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. [Citations.] The invitor may assume that an invitee will perceive that which would be obvious to him through the ordinary use of his senses. [Citation.]?? ?Where the condition or danger is obvious, there is no duty to specially guard or warn against it. Hence, an injury to the user of the premises from an obvious characteristic produces no liability against the possessor of land.?? (Beauchamp, supra, 273 Cal.App.2d at p. 31.)
Defendant EQR proffers the following facts to support its argument that the golf cart and ramp configuration posed an open and obvious danger and, consequently, defendant EQR had no duty to warn plaintiff Lachman:? Plaintiff Lachman has been a resident at the Apartments since 1998.[1]? When plaintiff Lachman first moved into the Apartments, there were two disabled parking stall located on either side of a ramp (?Ramp 1?).[2]? In 2005, the designated parking stalls were moved to either side of a different ramp (?Ramp 2?).[3]? Plaintiff Lachman was aware that Ramp 1 was no longer the designated disabled parking area, and that the disabled parking area had moved to Ramp 2.[4]? Plaintiff Lachman used Ramp 2 on many occasions prior to the incident.[5]? However, plaintiff Lachman continued to use Ramp 1, depending on where she parked.[6]? Plaintiff Lachman used Ramp 1 even when there was a golf cart parked on the ramp.[7]? Plaintiff Lachman recognized that it is not easy to use Ramp 1 when there is a golf car parked on/in front of the ramp.[8]? EQR staff told plaintiff they could bring her mail if the disabled parking was not available.[9]? Plaintiff Lachman had the office retrieve her mail in the past.[10]
On the evening of the incident, plaintiff double parked behind the cars parked on either side of Ramp 1 because no parking spaces were available on either side of Ramp 1 or Ramp 2.[11]? A golf cart was parked on Ramp 1, but plaintiff Lachman decided to use the ramp blocked by the golf car to get to her mailbox.[12]? Before using Ramp 1, plaintiff Lachman realized the placement of the golf car would make it difficult to use the ramp.[13]? Plaintiff Lachman, in fact, experienced difficulty in maneuvering around the golf cart and up the ramp.[14]? Plaintiff Lachman had a shopping bag with her that she hung from one of her crutches.[15]? After retrieving her mail, plaintiff Lachman attempted to go back down the ramp but fell when her foot got caught between the raised curb on the side of the ramp and some part of the vehicle parked next to the ramp.[16]? Plaintiff Lachman?s view was not obstructed and she could see the golf cart and raised curb next to the golf cart.[17]
In opposition, plaintiff Lachman does not dispute any of the facts proffered above.? However, plaintiff Lachman argues that although the open and obvious nature of the danger may relieve defendant EQR of the duty to warn, it does not relieve defendant EQR of the duty to remedy the danger posed by the golf cart being placed where it was blocking Ramp 1.? The court in Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122, came to the conclusion that,
although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability, if the breach of duty was a proximate cause of any injury.
(Italics original; see also Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184 (Martinez)??But the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it. The modern and controlling law on this subject is that ?although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability….? [Citations.])
As both sides recognize, ?Whether such a duty [to remedy a defective or dangerous condition] existed depends upon a number of as yet unresolved factors, such as the foreseeability of harm, defendant?s advance knowledge vel non of the dangerous condition, and the burden of discharging the duty.? (Martinez, supra, 121 Cal.App.4th at p. 1185.)
Defendant EQR argues further that, under the circumstances, it owed no duty to warn or remedy the danger presented by the golf cart on the ramp.? Defendant EQR undertakes an analysis of the Rowland v. Christian factors beginning with the foreseeability of harm.? Defendant EQR contends it was not foreseeable that a person with crutches, such as plaintiff, would choose to use a ramp blocked by a golf cart when an unobstructed ramp (Ramp 2) was available, in contrast to the facts in Martinez where the court noted, ?it may yet have been predictable that despite that constructive warning, the wet pavement would still attract pedestrian use. For example, the pavement appears to have provided a principal if not sole access way from the street to defendant’s building, which housed a government office serving the public.? (Id.)
However, the mere existence of an alternative does not resolve the issue of foreseeability, particularly here where plaintiff Lachman proffers evidence that other people use Ramp 1; the Apartments? manager received complaints of insufficient parking; and that despite instructions by the manager of the Apartments not to park the golf cart at Ramp 1 prior to the incident, leasing staff parked the golf cart in the area of Ramp 1 on the date of the incident and thereafter.[18]? Defendant EQR?s own evidence supports a finding of foreseeability.? For instance, defendant EQR proffers evidence that when the disabled parking was moved from the stalls adjacent to Ramp 1 to the stalls adjacent to Ramp 2, the distance is ?approximately two car lengths if someone were to use the sidewalk/walkways between the two areas.?[19]? While defendant EQR deems this distance to be minimal, it nevertheless bolsters plaintiff Lachman?s position that Ramp 1 provides the closest access to the mailboxes.? A reasonable inference is that it would be foreseeable that people would continue to use Ramp 1 because of its proximity to the mailboxes.? In any case, the evidence concerning foreseeability is in conflict, thereby precluding this court from making a determination of the existence of duty on a motion for summary judgment.
The other evidence cited by defendant EQR on the issue of foreseeability actually go to the issue of comparative negligence.? For instance, defendant EQR notes that the incident occurred between 11:15 p.m. and 11:35 p.m.[20]? Plaintiff normally retrieved mail only once a week and did not expect to receive anything urgent in the mail.[21]? Plaintiff could have asked the office to retrieve her mail for her as she had done in the past.[22]? Just as in Martinez, defendant EQR is offering facts as to how plaintiff could have avoided the accident.? Just as in Martinez, ?how plaintiff navigated the area [or avoided navigating the area] may pose an issue of comparative negligence. [Citation.] But that does not now warrant relieving defendant of all the legal burden of the situation.? (Id. at p. 1186.)
In reply, defendant EQR filed objections to the evidence offered by plaintiff Lachman in opposition to the motion for summary judgment.? The court did not deem said evidence to be material to its ruling and declines to rule on defendant EQR?s objections.? ?In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.? (Code Civ. Proc., ? 437c, subd. (q).)
Accordingly, defendant EQR?s motion for summary judgment is DENIED.
Footnotes:
[1] See Separate Statement of Undisputed Material Facts in Support of Defendant EQR-Fresca 2009 Limited Partnership?s Motion for Summary Judgment (?EQR UMF?), Fact No. 2.
[2] See EQR UMF, Fact No. 6.
[3] See EQR UMF, Fact No. 7.
[4] See EQR UMF, Fact No. 9.
[5] See EQR UMF, Fact No. 14.
[6] See EQR UMF, Fact No. 15.
[7] See EQR UMF, Fact No. 16.
[8] See EQR UMF, Fact No. 17.
[9] See EQR UMF, Fact No. 18.
[10] See EQR UMF, Fact No. 19.
[11] See EQR UMF, Fact Nos. 22 ? 23.
[12] See EQR UMF, Fact Nos. 27 ? 28.
[13] See EQR UMF, Fact No. 32.
[14] See EQR UMF, Fact No. 35.
[15] See EQR UMF, Fact No. 36.
[16] See EQR UMF, Fact Nos. 37 and 41.
[17] See EQR UMF, Fact No. 38 ? 39.
[18] See Plaintiff Judith Lachman?s [Additional] Material Facts in Opposition, etc., Fact Nos. 42, 43, 45, 46, 52, 58, 62, 65, and 66.
[19] See EQR UMF, Fact No. 8.
[20] See EQR UMF, Fact No. 21.
[21] See EQR UMF, Fact Nos. 13 and 26.
[22] See EQR UMF, Fact Nos. 18 ? 19.