Opinion
B180897 (c/w B183642)
5-14-2007
MARTIN BLOOM, Plaintiff and Appellant, v. DENNYS INC. et al., Defendants and Respondents.
Carpenter & Zuckerman and John C. Carpenter for Plaintiff and Appellant. Campion Rodolff, John E. Campion III and Eric S. Eliot for Defendants and Respondents.
NOT TO BE PUBLISHED
Plaintiff Martin Bloom appeals from summary judgments in favor of defendants, Dennys Inc. (Dennys) and Elsinore Developers (Elsinore), in a negligence action arising from Blooms trip and fall outside a Dennys restaurant in Northridge, situated on property leased from Elsinore. The trial court ruled as a matter of law that the height differential of the walkway outside the entrance to the restaurant, where Bloom fell, constituted a trivial defect, insufficient to sustain a negligence claim. In so ruling, the court rejected plaintiffs argument that a presumption of negligence applied because of the walkways violation of a differential height regulation under the Americans With Disabilities Act, 42 U.S.C. § 12000 et seq. (ADA). We hold that the walkways height variance was not necessarily trivial as opposed to dangerous, and that there also was a triable issue concerning causation of Blooms injuries. We therefore reverse the judgments.
FACTS
Blooms complaint for negligence and premises liability alleged that on November 3, 2002, he was injured when he tripped and fell on a dangerous condition outside the restaurant. After answering, Dennys moved for summary judgment, on grounds the defect on which Bloom allegedly fell was trivial and nonactionable, and also that Bloom could not establish causation of his injuries.
In support, the restaurants day manager, Leyva, declared that he had arrived at the scene outside minutes after Bloom fell, between 11:30 a.m. and noon. Bloom told him he thought he had tripped on a juncture of concrete slabs, one higher than the other. Leyva inspected the area, visually and with his foot, and estimated the height differential was slightly less than one-quarter inch. In addition, the day was sunny and clear, the area was not wet, and Leyva noticed no foreign substances or debris.
Miller, general manager of the restaurant, declared that, based on his familiarity with the area, the height differential was less than one-quarter inch. There had been no other reported trips or slips at the location since Millers tenure began in the spring of 2001. Included with the declarations were photographs of the area, including the height differential.
Dennys also filed excerpts from Blooms deposition, in which he described the accident, the weather conditions, and the cause, his tripping on the elevation. Blooms left foot had tripped. The foot was afflicted with diabetic neuropathy, and exhibited bruising after the accident. Bloom had not measured the height differential, and could not estimate it.
In its points and authorities, Dennys argued both grounds of its motion: that Bloom had not established that he had slipped on the height differential, and that, given its size and all the surrounding circumstances that day, the differential constituted a trivial defect of the walkway, not a dangerous condition.
In his opposition, Bloom countered in part that the situation of the concrete slabs prima facie constituted negligence per se, under Evidence Code section 669. He relied primarily on ADA regulations requiring that walkway surface level changes of between one-quarter and one-half inch be beveled, rather than left vertical. Bloom included excerpts from his deposition, recounting physical disabilities that afflicted him. In addition, Bloom submitted a brief declaration by himself, which was unsigned, and to which the court later sustained an objection for that reason.
Bloom also filed portions of Dennys manager Millers deposition, in which Miller described having noticed the height differential about six months before the accident, and having frequently tested it with his foot for tripping hazards. Miller stated he had not perceived any.
Finally, Bloom filed a declaration by an engineer, Avrit, who principally opined that the height differential had posed a substantial tripping hazard. Among the matters Avrit cited as underlying this opinion was a site inspection performed by his assistant, Harrison, who had measured the differential as three eighths of an inch.
Dennys objected to Avrits entire declaration on grounds its contents were not proper subjects of expert opinion. Dennys also posed several individual objections, including that the portion of the declaration referring to the height Harrison had measured was hearsay and lacked foundation.
On the day before the hearing, Bloom filed a declaration by Harrison, stating in part that he had measured the height differential and it was three eighths of an inch. Bloom also filed a supplemental declaration by Avrit.
At the hearing, the court stated it would not consider, because untimely, the declarations Bloom had filed the previous day. The court sustained the overall objection to Avrits original declaration. In its decision on the summary judgment motion, the court found that the height differential was a trivial defect. The court so ruled based on the testimonial evidence and the differential as shown by the photographs. Blooms motion for reconsideration was subsequently denied.
The landlord Elsinore later moved for summary judgment as well. The course of filings, arguments, and rulings on this motion essentially paralleled those on the Dennys motion.
DISCUSSION
To obtain summary judgment, defendants had to show either that one or more elements of Blooms claims could not be established, or that there existed a complete affirmative defense to those claims. (Code Civ. Proc., § 437c, subds. (a), (o)(1), (2), (p)(2).) Defendants could do this by advancing evidence that either negatived the claim, showed that Bloom had insufficient evidence to establish it, or established the complete defense. (Ibid.) Defendants bore the burden of persuading the court to this effect. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
Grants of summary judgment are reviewed de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler.) We necessarily so review the trial courts resolution as a matter of law of the ordinarily factual question of whether there was a dangerous condition. We view the evidence in the light most favorable to Bloom, as the nonmoving party, liberally construing his evidence while strictly scrutinizing defendants. (Aguilar, supra, 25 Cal.4th at p. 856;Saelzler, supra, 25 Cal.4th at p. 768.)
In considering whether or not the defect in Dennys walkway was trivial as a matter of law, we initially note that Dennys employees estimates that the height difference was less than one-quarter inch were not uncontested. Bloom adduced competent testimony, by Harrison, that the elevation was actually three-eighths of an inch, perhaps twice the extent of the Dennys estimates. The trial court stated it would not consider Harrisons declaration because filed late, but that ruling, if adhered to, would have been an abuse of discretion. The declaration was not filed in violation of a statutory time limit. (Cf. Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal.App.3d 1380, 1386-1387.) It was an effort to rectify an evidentiary shortcoming in Avrits declaration, and the contents — the three-eighths measure — were not new matter, either to respondents or the court. Bloom made out this element of his case competently, and to disregard that showing was inappropriate.
Moreover, despite the courts statement at the hearing, the record reflects that the court did consider the three-eighths-inch measurement. Both of the orders granting summary judgment referred to "the change in elevation of three-eighths inch" as the factor that did or did not create a dangerous condition.
With that measurement part of the record, we consider the question whether the walkway height differential was not dangerous as a matter of law, or whether its dangerousness presented a triable question. Certain principles frame decision of this question. The question of dangerousness is normally one of fact. (Gentekos v. City and County of S. F. (1958) 163 Cal.App.2d 691, 696 (Gentekos).) The issue is not to be determined solely by the size of the elevation, by applying a tape measure to it. (Id. at p. 698; accord, Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (Hathaway) ["a tape measure alone cannot be used to determine whether the the defect was trivial"].) "[T]he public is entitled to be protected from even small defects if injury is likely to result from them [citation] . . . ." (Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, 151 (Johnson).) Ultimately, if reasonable minds could differ on the question whether the condition was dangerous, that question is one of fact, and "such defect could not be considered trivial as a matter of law." (Id. at p. 152.)
Upon review of the record, we conclude that this is such a case. The trial courts ruling was supported by the clear conditions of the site when the accident happened. But the walkway photographs reflect a continuous elevation that appears capable of causing one to trip and fall. (Cf. Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463, 467.) Moreover, that elevation caused a Dennys manager, Miller, to consider whether it constituted a tripping hazard, and to test it repeatedly on that account. Although Miller testified he did not find such a hazard, his extended pursuit of that possibility supports the conclusion that the question of the differentials dangerousness was not open-and-shut.
From the evidence presented, we conclude that reasonable minds could differ about whether the condition that Bloom encountered was a dangerous one. The answer was not established as a matter of law, and the question is triable.
Defendants also seek to sustain the summary judgment based on their second ground, that Bloom could not establish causation of his injuries. Defendants contention, in essence, is that Blooms testimony regarding his tripping on the elevation was insufficiently definite. That is not so. Blooms testimony, as well as that of manager Leyva, who quoted Bloom as believing he had tripped on the height differential, provided a prima facie case that that had occurred, sufficient to avoid summary judgment.
DISPOSITION
The judgments are reversed. Plaintiff shall recover costs.
We concur:
BOLAND, J.
FLIER, J. --------------- Notes: Both Johnson and Gentekos, supra, 163 Cal.App.2d 691, were the subject of legislative abrogation on other grounds, as described in Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831.)