Case Number: BC582695??? Hearing Date: October 21, 2016??? Dept: 92
ROCIO GABRIELA PALAFOX VALENCIA, ET AL.,
Plaintiff(s),
vs.
TNH MOTORS, INC., ET AL.,
Defendant(s).
CASE NO: BC582695
[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT1. Allegations of the Complaint
Plaintiffs, Rocio Gabriela Palafox Valencia and Jesus Fuentes-Sosa filed this action against Defendants, Hankey Investment Co., LP, et al. to recover for injuries sustained when Valencia fell down the stairs. Valencia alleges she was holding on to a handrail while descending the stairs, the handrail gave way (broke), and she consequently fell and sustained injuries. Fuentes-Sosa sues for loss of consortium.
2. Motion for Summary Judgment
At this time, Defendant moves for summary judgment, contending it did not cause the dangerous condition and it did not have notice of the dangerous condition.
a. Initial Notes
Plaintiffs filed their opposition on 10/05/16 and served it by mail the same day. Defendant correctly notes in reply that service by mail is not reasonably calculated to ensure delivery by the next business day, as required by CCP ?1005(c). Defendant urges the Court to refuse to consider the opposition. The Court finds the relief requested would be unduly harsh. The Court does, however, ask that Plaintiffs? attorney ensure all papers are served in a manner compliant with ?1005(c) in the future in connection with this and other actions.
Plaintiffs? opposition includes an appendix of exhibits that is 175 pages long. The exhibits are not tabbed, as required by CRC 3.1110(f). Failure to tab exhibits renders review of exhibits very difficult for the Court. Additionally, the deposition testimony upon which Plaintiff relies is not highlighted, as required by CRC 3.1116(c). Highlighted testimony is much easier for the Court to review. The Court requests that Plaintiff?s attorney ensure compliance with all Rules of Court in the future in connection with this and other actions.
b. Evidentiary Objections
Both parties submitted evidentiary objections with their opposition and reply papers. Plaintiffs? objections are overruled. Defendant?s objections are sustained; the Court finds this is not a case that requires expert opinion, and finds Avrit?s testimony is subject to objection on the stated ground of improper expert opinion.
c. Law Governing Premises Liability
?The owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.? (BAJI No. 8.20. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it. Girvetz v. Boys? Market, Inc. (1949) 91 Cal.App.2d 827, 829.
?It is generally a question of fact for the jury as to whether, under all the circumstances, the defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it.? Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 92; citing Louie v. Hagstrom?s Food Stores, Inc. (1947) 81 Cal. App. 2d 601. In the Louie case, the plaintiff slipped in a pool of syrup that had been spilled on the floor of the defendant?s grocery store. The evidence was that no employee of the defendant had examined this area for from 15 to 25 minutes before the accident. The court held that whether the dangerous condition existed long enough so that a person exercising ordinary care would have discovered it was a question for the jury. Id.
?The requirement of actual or constructive knowledge is merely a means of applying the general rule stated above that the proprietor may be liable if he knew or by the exercise of reasonable care could have discovered the dangerous condition, and it does not alter the basic duty to use ordinary care under all the circumstances. It obviously follows that the owner of a store must make reasonable inspections of such portions of his premises as are open to his customers, and, in this connection, it has been held that evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. [Citations.] As declared in these cases, it is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered by an owner who exercised reasonable care.? Bridgeman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446-447.
d. Moving Burden
Defendant argues Plaintiffs cannot establish their claims for negligence and premises liability because Defendant did not cause the condition at issue, and Defendant did not have actual or constructive notice of the condition at issue.
Defendant provides evidence that it employs a regular cleaning crew, and that said crew has an established method to clean the banisters, which method was used either the night before the fall or the morning of the fall. It provides evidence that the cleaning crew did not notice any problem with the banister when cleaning prior to the fall, and had a method for detailing problems when they were encountered. It provides evidence that there were no reports of problems with the handrail, which was used routinely by customers and employees.
Defendant?s evidence in support of its motion is sufficient to show that Defendant is not liable on the complaint as a matter of law, and the burden shifts to Plaintiffs to raise a triable issue of material fact.
e. Plaintiffs? Burden
Plaintiffs argue there are triable issues of material fact concerning whether the doctrine of res ipsa loquitor applies and also concerning whether Defendant created the dangerous condition at issue.
i. Res Ipsa Loquitor
Plaintiffs? first argument is that the doctrine of res ipsa loquitor applies and bars summary judgment in this case. Plaintiffs rely primarily on Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155 to support their position. In Howe, the plaintiff sat on a bar stool at the defendant?s restaurant; he leaned back, and the bar stool broke, causing him to fall to the ground. The trial court granted the defendant?s MSJ, finding the defendant met its burden to show it did not cause the defect in the bar stool and did not have advance knowledge of the defect in the bar stool. The court of appeal reversed, finding the plaintiff had the right to invoke the doctrine of res ipsa loquitor. The court of appeal noted that a bar stool does not ordinarily break in the absence of someone?s negligence, the bar stool was in the exclusive control of the defendant, and the plaintiff was not using the bar stool in a manner that contributed to his own fall.
Plaintiffs herein argue the same analysis applies; they argue a handrail/bannister does not ordinarily break in the absence of someone?s negligence, the handrail was in Defendant?s exclusive control, and they were not using the handrail in a manner that contributed to the fall.
In reply, Defendant argues this case is distinguishable from Howe because case law holds that slip and fall incidents can occur in the absence of negligence. The Court finds a fall due to a handrail breaking is more similar to a fall due to a bar stool breaking than it is to a slip and fall due to a substance on the floor, and therefore these cases do not assist Defendant in distinguishing Howe.
Defendant next argues that handrails can break for a variety of reasons, none of which would implicate negligence. The Court cannot find a meaningful distinction between the spontaneous breaking of a handrail and the spontaneous breaking of a bar stool, and therefore Defendant, again, fails to distinguish Howe.
Defendant?s third argument is that Plaintiff cannot show the handrail was in Defendant?s exclusive control. Defendant notes that the opposition suggests the handrail could have been negligently installed, and there is no reason to believe Defendant, which took the property from a prior occupier of the premises, would have installed the handrail. The Court disagrees. Defendant does not provide any evidence concerning how long it had been in possession of the premises. It does not appear Defendant?s use of the premises was recent. There was no evidence in Howe that the defendant owner of the restaurant installed the subject bar stool. This is, therefore, not a meaningful distinction from Howe either.
Defendant next argues that, even if the doctrine can be invoked, Defendant can overcome the presumption. Howe, however, explains at length that a defendant is entitled to present evidence to overcome the presumption, but the doctrine can still be invoked at trial and jury instructions submitted based on the doctrine. The court of appeal noted, ?This result also is illustrated by a further portion of the Comment. The commission gives several examples of situations in which the res ipsa loquitur doctrine is applicable. Where the predicate facts giving rise to the presumption are established as a matter of law but there is evidence to rebut the presumed fact, the presumption vanishes, but (except in rare cases where the inference of negligence is dispelled as a matter of law), the court may instruct the jury that it may infer from the established facts that the defendant’s negligence was a proximate cause of the accident, and the court is required to give that instruction when requested. (Comment, supra, at p. 200.) And where the basic facts are contested and evidence is introduced to rebut the presumption, the presumption vanishes, but the doctrine may still support an inference that the accident resulted from the defendant’s negligence. Again, an appropriate instruction on the inference is appropriate. (Comment, supra, at p. 201; see CACI No. 417.)?
Plaintiffs met their burden to show that this case is sufficiently similar to Howe to support a res ipsa loquitor inference. The motion for summary judgment is therefore denied.