Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. GC041126 Joseph F. De Vanon, Judge.
Law Offices of Michael T. Martin, Michael Thomas Martin; Richard Le Bell Morgan for Plaintiffs and Appellants.
KLINEDINST PC, G. Dale Britton, Ernest L. Weiss and Brent R. Phillips for Defendant and Respondent.
GRIMES, J.
SUMMARY
Plaintiffs Elsa and Jose Alvarez slipped and fell in a pool of vomit (the spill) outside a restaurant operated by defendant Dave and Buster’s, Inc. Defendant moved for summary judgment on the grounds it did not control the area where the accident occurred and did not know of the dangerous condition in time to remedy it as a matter of law. In granting defendant’s motion for summary judgment, the trial court agreed with defendant on both grounds. Plaintiffs contend on appeal that defendant controlled the area outside of the restaurant and owed them a duty to warn them or remove the dangerous condition. We find that even if defendant controlled the area, plaintiffs, who fell less than one minute after the spill was deposited, produced no evidence that defendant could have warned plaintiffs or removed the spill before they fell.
FACTS
The Dave & Buster’s restaurant (the restaurant) is a tenant of the Westfield Santa Anita Shopping Mall (the Mall). The restaurant is adjacent to a common area of the Mall known as the “AMC Lobby.” A clear boundary marks where the AMC Lobby stops and the restaurant begins. On August 5, 2007, a boy vomited on the floor of the AMC Lobby, 15 feet from the entrance to the restaurant. Less than one minute later, plaintiffs Elsa and Jose Alvarez slipped in the spill and fell.
Restaurant employees immediately began taking measures to clean up the spill. One employee stationed near the front of the restaurant radioed management to inform them of the spill and then began walking toward it. The employee was somewhere between the front of the restaurant and the spill when plaintiffs slipped, perhaps as close as two or three feet from plaintiffs. There was no evidence the employee noticed plaintiffs or had time to warn them. The assistant general manager arrived on the scene about 30 seconds after receiving the radio call. Plaintiffs were already on the ground. After the slip and fall, restaurant employees cleaned up the spill with paper towels.
The lease agreement between the landlord, Santa Anita ShoppingTown LP and defendant specifically prohibits defendant from engaging in any business activities in the common areas of the Mall. The lease provides that the landlord “shall maintain, operate, repair and replace” the common areas of the Mall, which include the AMC Lobby. The lease prohibits the tenant from posting signage anywhere in the common area unless expressly permitted by the landlord in writing. However, common sense tells any restaurant employee that it is bad for business to leave a spill of this nature near the restaurant entrance, and it should be cleaned up or a warning posted as soon as possible.
DISCUSSION
1. Standard of review.
Summary judgment is appropriate when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff’s cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant can satisfy this burden by presenting evidence that negates an element of the cause of action or shows that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) If the defendant meets this burden, the burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) We review the trial court’s ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller, supra, 36 Cal.4th at p. 460.) We will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22; see Code Civ. Proc., § 437c, subd. (m)(2).)
2. The merits.
We conclude summary judgment was appropriate because plaintiffs produced no evidence that defendant failed to exercise ordinary care in remedying the spill or in warning of it. Because this ground is dispositive, we need not and do not consider whether defendant controlled the area of the spill for purposes of premises liability.
It has long been the law in California that the duty to warn of or remove a dangerous condition of property created by a third party arises only when the landowner had actual or constructive knowledge, or by ordinary investigation should know, of the dangerous condition. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806); see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (Ortega).) California courts have also repeatedly held that landowners are not insurers of the safety of their property but do owe a duty to exercise reasonable care in keeping the premises safe. (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829 (Girvetz).) The law gives a landowner reasonable time to remedy or warn against the dangerous condition once it has been discovered. (Ortega, at pp. 1206-1207; see also Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 479 (Moore).) Negligence in slip-and-fall cases is “founded upon [the defendant’s] failure to exercise ordinary care in remedying the defect after he has discovered it.” (Girvetz, at p. 829.)
Many cases involve the question of whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it, and that is often a question of fact for the jury. (Ortega, supra, 26 Cal.4th at p. 1207.) Here, however, the parties agree that defendant had actual knowledge of the spill immediately, and that the accident occurred less than a minute after the spill. Consequently, the only question is whether one minute was a sufficient time, in the exercise of reasonable care, “ ‘to have either remedied the condition or provided warning or protection against it.’ ” (Moore, supra, 111 Cal.App.4th at p. 479, quoting BAJI No. 8.24.) We conclude as a matter of law on these undisputed facts that it was not.
Girvetz is instructive. In Girvetz, the plaintiff slipped on a banana or banana peel that had fallen on the floor of the defendant’s grocery store. (Girvetz, supra, 91 Cal.App.2d at p. 828.) The only evidence as to how long the dangerous condition existed before the plaintiff’s fall was “the testimony of a customer that she saw the banana on the floor ‘a good minute and a half’ before the happening of the accident.” (Ibid.) The accident occurred in a well lit part of the store within five feet of the nearest employee. (Id. at p. 829.) Like the present case, the evidence showed that the dangerous condition was caused by a third party. (Id. at p. 831.) The court stressed that “the exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, but varies according to the circumstances.” (Ibid.) The court stressed that the proper inquiry to be made is whether the defendant failed to exercise the ordinary care required of him. (Ibid.) The court held that under the circumstances of the case, one and a half minutes was insufficient to support an inference that the defendant failed to exercise the care required of him. (Ibid.) The same is true in this case.
The facts, viewed most favorably to plaintiffs, demonstrate that restaurant employees took immediate action to remedy the dangerous condition, even though it was not on their leased premises. Both parties agree that the total time between the events was less than 60 seconds. Plaintiffs do not allege facts that support a reasonable inference that any restaurant employee could have reached the spill and cleaned it up, or provided warning or protection, before plaintiffs slipped and fell. Plaintiffs point out that a restaurant employee witnessed the spill and was a few feet away at the time of the accident. However, it is unreasonable to expect the employee to leave his post inside the restaurant, inform management and other employees of the spill, and clean up or warn all patrons in the vicinity within 60 seconds of the spill. Moreover, as the trial court pointed out, plaintiffs presented no evidence that the employee who witnessed the spill saw plaintiffs in time to warn them not to step in it.
In sum, any inference that a restaurant employee could have cleaned the spill or provided a warning to all patrons in the area within one minute exceeds the applicable standard of ordinary care. There are no facts showing that defendant and its employees failed to exercise the ordinary care required of them. To impose on defendant the duty to do more than its employee did here would require “ ‘utmost’ ” care rather than ordinary care, and that is more than the law requires. (See Girvetz, supra, 91 Cal.App.2d at p. 832.) The burden was on the plaintiffs to present enough facts to show defendant’s negligence, and they failed to do so here.
DISPOSITION
The judgment is affirmed. Defendant is to recover its costs on appeal.
I CONCUR: BIGELOW, P. J.
RUBIN, J. – Dissenting
I respectfully dissent and would reverse the judgment in favor of respondent Dave and Buster’s, Inc.
Respondent’s motion for summary judgment was on two grounds: One, respondent was not negligent as a matter of law because the time between the vomit spill and appellants’ fall was less than one minute, thus providing inadequate notice for respondent to act. Two, respondent did not own or lease the premises on which the fall occurred and, thus, owed no duty to appellants. The trial court granted the motion on both grounds. The majority reasons that respondents were not negligent as a matter of law, affirms the judgment on that ground, and concludes that a consideration of respondent’s second point is not necessary. In my view there are triable issues of fact that preclude the granting of summary judgment.
The majority correctly points out that the duty of a landowner to remedy or warn of a dangerous condition of property arises only when it has actual or constructive knowledge of the danger, or by ordinary investigation could have learned of the condition. (See Ortega v. Kmart Corp (2001) 26 Cal.4th 1200, 1206; Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.) It is equally true that those who control premises are not insurers of the safety of all who come onto the property, but only must exercise reasonable care. (Ibid.)
I also agree with majority that it is generally a question of fact for the jury to decide whether a condition has existed on property for a sufficient time to allow discovery by a reasonably prudent person. (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1207.) Of course, if there is no triable issue of fact that would support a finding that a defendant was negligent, then summary judgment is proper.
Respondent argues that the one minute that passed between the vomit spill and appellants’ fall, as a matter of law there is insufficient time for negligence to attach to respondent. It cites several cases in which much longer time periods were involved. In that string of authorities are: Louie v. Hagstrom’s Food Stores, Inc. (1947) 81 Cal.App.2d 601, 605; Ortega v. Kmart, Corp., supra, 26 Cal.4th at p. 1210; Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476; and Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, 131. Initially, I note that three of these cases concluded that whether the time the dangerous condition had existed before the plaintiff’s injury was sufficient for the defendant’s negligence was a question for the trier of fact. The fourth, Moore v. Wal-Mart Stores, Inc., supra, at page 479, reversed a judgment for the plaintiff because the trial court had eliminated the “actual or constructive knowledge requirement from the jury instructions.” The appellate court did not determine whether sufficient time had passed as a matter of law.
The more fundamental flaw in respondent’s argument is that all of these cases deal with constructive knowledge – the situation in which the defendant concededly does not know of the dangerous condition but because of the passage of time and other factors is deemed constructively to have such knowledge.
A fifth case, cited by respondent, Givertz v. Boys’ Market, Inc., supra, 91 Cal.App.2d at page 829, also deals with constructive knowledge as none of the store employees there had actual knowledge that the banana that caused the plaintiff to slip had fallen on the floor.
That is not the present case.
Mr. Legerton, who describes himself as employed as the Captain at respondent’s restaurant, actually saw the child vomit. The exact words in his declaration in support of respondent’s motion for summary judgment were: “I observed the young boy vomit onto the floor of the Mall in front of an elevator.” This testimony eliminates all inquiry into whether respondent had constructive knowledge of the dangerous condition. Respondent had actual knowledge.
I would agree that if this case were founded on constructive knowledge, absent unusual circumstances – for example a loud crashing sound suggesting a spill – one minute between the event and the injury would almost always be insufficient as a matter of law. But where the landowner has actual knowledge of the condition, the inquiry turns to what, if anything, the landowners could reasonably have done in that admittedly short period of time. If reasonable minds could differ on the answer, then the trier of fact must decide whether the defendant acted reasonably.
In the present case, we look at whether respondent, specifically Mr. Legerton, was in a position before the accident to clean up the spill or warn passersby of the danger. Another restaurant employee, Chris Purdy, said that Mr. Legerton was “standing almost in front of” the spill. Mr. Legerton stated that when he saw the boy vomit, he immediately radioed for assistance and plaintiffs fell shortly thereafter. Mr. Legerton never stated he was not in a position to warn nearby patrons or take other action. The inference is that during the time Mr. Legerton was talking on the radio –brief though it may have been – he could have walked the few steps toward the vomit spill and have warned others of the danger. Whether Mr. Legerton acted reasonably in choosing one course of conduct over another was a question of fact, in my mind, for the jury.
The remaining issue that the majority did not need to reach because of its resolution of the first point was whether respondent exercised sufficient control over the premises where the spill took place. The uncontradicted evidence is that respondent did not own or lease the actual area in which the fall occurred. But neither title, leasehold nor other legal descriptors is the test for premises liability; it is control of the premises that governs. (Alcaraz v. Vece (1997) 14 Cal.4th 1149.) “ ‘The courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on “the premises.” The physical area encompassed by the term “the premises” does not, however, coincide with the area to which the invitor possesses a title or a lease. The “premises” may be less or greater than the invitor’s property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control.’ [Citation.]” (Id. at p. 1158.) Here, the evidence included a Dave and Buster’s restaurant sign on the floor in the walkway leading to the restaurant and in the immediate vicinity of the spill; a restaurant employee assisting in the cleanup of the spill; and Mr. Legerton radioing for help. Although some of the evidence might suggest nothing more than acts of a Good Samaritan, a reasonable trier of fact could conclude that the area immediately adjacent to the actual restaurant entrance was controlled by respondent. “ ‘It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.’ ” (Id. at p. 1158, quoting Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 401.)
Because appellants’ opposition papers raised triable issues of fact on the two grounds asserted by respondent in its motion for summary judgment, the trial court should have denied the motion.