Opinion
Review Granted Dec. 12, 1991.
Review Granted Previously published at: 10 Cal.App.4th 460, 4 Cal.App.4th 1718, 233 Cal.App.3d 1040
Opinions on pages 308-532 omitted.
REVIEWS GRANTED [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
[284 Cal.Rptr. 856] James H. Miller, San Diego and Douglas A. Stoodt, Poway, for plaintiff and appellant.
Stutz, Gallagher & Artiano, Daniel R. Shinoff, Jack M. Sleeth, Jr. and Susan L. Mason, San Diego, for defendant and respondent.
OPINION
FROEHLICH, Associate Justice.
Francis Brown (Brown) appeals from a summary judgment in favor of Poway Unified School District (the district) in his action for personal injury. He had based his claim against the district on an accident in which he slipped on a piece of lunch meat on the district's premises, causing him to fall and injure himself. Because the evidence presents questions of fact as to whether the doctrine of res ipsa loquitur may be used to infer liability on the part of the district, we hold that the trial court erred in granting summary judgment and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
At about 9:30 a.m. on the morning of April 4, 1988, Brown, a self-employed computer repairman, arrived at the district's facilities building to deliver computer equipment he had repaired. Michael Olkonen, employed as a delivery worker for the district, helped Brown unload and carry the computer equipment from Brown's van to the plumbing shop, located inside the facilities building. The two men made four or five trips carrying the equipment along the hallway leading from the outside of the building through the electrical shop and then along a narrow hallway to the plumbing shop. After all the computer equipment was unloaded, Brown noticed that a computer had been taken mistakenly into the plumbing shop, so he carried it back into the hallway. There he slipped on a piece of lunch meat and fell, injuring himself.
Brown filed suit against the district, alleging the district negligently maintained the facilities building so as to create a dangerous condition, and further alleging it had actual or constructive notice of the condition but failed to protect against such condition. Brown also alleged that one or more employees of the district intentionally or negligently left the lunch meat on the hallway floor while in the course and scope of his or her employment.
An employee's bringing of food to the work site for his or her own use may be considered within the scope of his or her employment. (DeMirjian v. Ideal Heating Corp. (1954) 129 Cal.App.2d 758, 765, 278 P.2d 114.)
The district brought two motions for summary judgment. The first was denied without prejudice; the second was granted in the district's favor.
Brown appeals, contending the trial court erred in granting summary judgment. He maintains the doctrine of res ipsa loquitur can be applied to the facts of the case to infer that a district employee caused the lunch meat to be on the floor, thus raising an issue of fact as to the district's liability.
DISCUSSION
Under Code of Civil Procedure section 437c, a trial court must grant summary [284 Cal.Rptr. 857] judgment if no triable issue of material fact exists and the motion papers entitle the moving party to judgment as a matter of law. (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.) " The purpose of the summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues." (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) The trial court determines whether triable issues exist by examining the affidavits and evidence before it and drawing reasonable inferences therefrom. (People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61-64, 118 Cal.Rptr. 438.) While " the affidavits of the moving party are to be strictly construed and those of the opponent liberally construed [citation] ... a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist." (Chern v. Bank of America, supra, 15 Cal.3d at p. 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)
In Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 241 Cal.Rptr. 706, the court stated:
" Whereas in the case at bar, a defendant seeks summary judgment, his declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate an absence of an essential element of plaintiff's case. If defendant establishes the foregoing, and the plaintiff's declaration in reply does not show that there is a triable issue of fact with respect to that defense or that an essential element exists, the summary judgment should be granted." (Id. at p. 266, 241 Cal.Rptr. 706, emphasis in original.)
Upon review the appellate court examines the facts presented to the trial judge on the summary judgment motion and determines their effect as a matter of law. (Stratton v. First Nat. Life Ins. Co., supra, 210 Cal.App.3d at p. 1083, 258 Cal.Rptr. 721.)
Under Government Code section 835,
" [e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
" (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
" (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
In its motion the district argued summary judgment was compelled because Brown was unable to prove any district employee had personal knowledge of the lunch meat on the floor or the district had actual or constructive notice of its presence, thus preventing Brown from proving all essential requirements to establish liability. None of the individuals present at the time of the accident admitted bringing lunch meat into the hallway, and each stated he or she had looked at the floor before the accident and had not observed any lunch meat there. Also, there was no evidence the district had notice of the hazard.
According to the district's statement of undisputed material facts, no one saw the lunch meat before the accident. Brown stated in deposition he did not notice anything on the floor before he slipped and fell. He also stated he had seen people eating their lunches in the area on other days.
Olkonen stated that on the day of the accident he had opened the building and walked down the hall between 7:30 and 8:30 a.m. and had returned between 9 and 9:30 a.m., never noticing lunch meat on the floor. He said he also looked at the hallway floor when he helped Brown carry the computers, but did not see any lunch meat. [284 Cal.Rptr. 858] Phyllis Hards, an employee of the district, declared that she had walked through the hallway before the accident, but saw no lunch meat on the floor. Hards also stated the doors to the plumbing and electrical shops, as well as the external door to the facilities building, were usually locked. Edward Balles, an independent contractor who had come to the facilities building that morning to pick up blades for sharpening, declared he carried no lunch meat into the area, nor did he see anyone else there with lunch meat. Custodian Ernest Lemire stated he had swept the hallway floor on Friday, April 1, 1988, three days before the date of the accident. He said part of his job was to inspect the facilities building for dangerous conditions, and further stated it was his practice to remove any slipping hazards he found on the floor.
In opposition to the district's motion for summary judgment, Brown argued he was not required to prove that a district employee had caused the meat to be on the floor because a finder of fact could infer employee negligence under the doctrine of res ipsa loquitur.
" [T]he ‘ doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.’ " (Newing v. Cheatham (1975) 15 Cal.3d 351, 359, 124 Cal.Rptr. 193, 540 P.2d 33, quoting Di Mare v. Cresci (1962) 58 Cal.2d 292, 298-299, 23 Cal.Rptr. 772, 373 P.2d 860.) Three conditions are necessary to apply the doctrine:
" ‘ (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ " (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, 154 P.2d 687.)
The evidence need not show that the accident must have happened because of someone's negligence, but that in the light of past experience the accident probably was caused by the negligence of someone. (Di Mare v. Cresci, supra, 58 Cal.2d at pp. 298-299, 23 Cal.Rptr. 772, 373 P.2d 860.)
We turn to the first condition— whether the accident is one which would not ordinarily occur in the absence of someone's negligence. In deciding if this condition is satisfied, courts generally consider common knowledge and experience, the testimony of expert witnesses and the circumstances relevant to the particular accident in the case. (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 446, 247 P.2d 344.) Common experience indicates Brown probably would not have slipped on lunch meat in the hallway in the absence of someone's negligence. Someone must have dropped the lunch meat on the hallway floor.
Courts have found this condition satisfied in a variety of factual situations. (See, e.g., Zentz, supra, 39 Cal.2d at p. 447, 247 P.2d 344 [exploding bottle of carbonated beverage]; Raber v. Tumin (1951) 36 Cal.2d 654, 659, 226 P.2d 574 [falling ladder]; Baker v. B.F. Goodrich Co. (1953) 115 Cal.App.2d 221, 223, 252 P.2d 24 [bursting automobile tire]; Owens v. WhiteMemorial Hospital (1956) 138 Cal.App.2d 634, 639, 292 P.2d 288 [rail of hospital bed fell on plaintiff]; McFarland v. Booker (1967) 250 Cal.App.2d 402, 412, 58 Cal.Rptr. 417 [rear-end collision]; Pappas v. Carson (1975) 50 Cal.App.3d 261, 269, 123 Cal.Rptr. 343 [fire from overloading electrical circuits or from defective wiring].)
The second condition, exclusivity of control, is a flexible concept. (Zentz, supra, 39 Cal.2d at pp. 443-444, 247 P.2d 344.) " [R]es ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible." (Id. at p. 446, 247 P.2d 344.) " Although ... the doctrine will not ordinarily apply if it is equally probable that the negligence was that of someone other than the defendant, the plaintiff need not exclude all other persons who might possibly have been responsible where the defendant's negligence appears to be the more probable explanation [284 Cal.Rptr. 859] of the accident." (Id. at pp. 443-444, 247 P.2d 344.)
The third requirement of res ipsa loquitur is that the accident must not be due to action by the plaintiff. Although Brown obviously " participated" in the accident by stepping on the lunch meat, such conduct does not automatically constitute him a voluntary contributor to the negligence. This third requisite for res ipsa loquitur is not congruent with the concept of contributory negligence, but looks instead to find conduct so participatory in damage causation as to preclude the inference that the defendant's negligence caused the accident. (McFarland v. Booker, supra, 250 Cal.App.2d 402, 412, 58 Cal.Rptr. 417.) " The plaintiff need not show that he was entirely inactive at the time of the accident in order to satisfy this requirement, so long as the evidence is such as to eliminate his conduct as a factor contributing to the occurrence." (Newing v. Cheatham, supra, 15 Cal.3d at p. 363, 124 Cal.Rptr. 193, 540 P.2d 33.) He may rely on the res ipsa loquitur doctrine even if he participated in the events leading to the accident, as long as his action was not the primary cause. (Hercules etc. Co. v. Automatic etc. Corp. (1957) 151 Cal.App.2d 387, 396, 311 P.2d 907.) The requirement that the defendant be in exclusive control of the instrumentality which caused the injury means only that the plaintiff's use of the instrumentality must not have been the primary cause of the accident. (Emerick v. Raleigh Hills Hospital (1982) 133 Cal.App.3d 575, 585-586, 184 Cal.Rptr. 92; 57B Am.Jur.2d, Negligence, § 1213, p. 127.) Thus, even a conclusion that Brown was contributorily negligent in failing to notice the meat would not preclude application of the res ipsa loquitur concept.
Where there is a question of fact as to any of the conditions required for application of the res ipsa loquitur doctrine, the issues are properly determined by a finder of fact. (Newing v. Cheatham, supra, 15 Cal.3d at p. 359, 124 Cal.Rptr. 193, 540 P.2d 33; Keena v. Scales (1964) 61 Cal.2d 779, 783, 40 Cal.Rptr. 65, 394 P.2d 809; Hansen v. Matich Corporation (1965) 234 Cal.App.2d 129, 133, 44 Cal.Rptr. 149.) Here, each of the three elements necessary to application of the doctrine was established at least to a degree sufficient to create a factual question for trial determination. Thus, the granting of summary judgment was improper.
We must address, however, certain arguments raised by the district which assert that its nature as a public entity precludes utilization of res ipsa loquitur in this case. The district contends its liability in tort is limited to specific statutorily created exceptions from the general rule of governmental immunity. (Gov.Code, § 815.) The statute upon which a claim of liability is based in this case depends upon the existence of a " dangerous condition." The district further contends that liability for damage caused by a dangerous condition is dependent upon the governmental entity's having either actual or constructive notice of the dangerous condition, and res ipsa loquitur is an inappropriate device for the proof of notice.
The district reads the governing statute too narrowly. Government Code section 835, upon which plaintiff bases his case, contains two alternative conditions of liability: either that the public entity " had actual or constructive notice of the dangerous condition" (subsection (b)) or that the dangerous condition was caused by the negligent act of an employee of the public agency. As stated in Van Alstyne, California Government Tort Liability Practice (1980) " Dangerous Conditions of Public Property," § 3.17b, p. 208:
" When the alleged basis of entity liability for a dangerous property condition is negligent or wrongful creation of the condition, plaintiff is not required to establish either actual or constructive notice to the entity. The creation by the public entity of a physical facility or condition that is ‘ dangerous' dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous."
The plaintiff in this case bases his claim upon alleged affirmative negligence [284 Cal.Rptr. 860] by a public entity employee, rather than simply on the existence of a dangerous condition which was not remedied. Thus, the notice requirements of subsection (b) have no application. As a result, the argument that res ipsa loquitur cannot be used to show notice of the dangerous condition to the public entity has no application.
The district nevertheless presses its argument that the concept of res ipsa loquitur is somehow inappropriate in an action against a public entity. As the district contends, the logical steps of circumstantial evidence utilized by res ipsa loquitur to infer negligence do not seem appropriate for production of an inference of notice. (See Van Alstyne, supra, at § 3.80, p. 308: " ... the carefully prescribed statutory standards for determining when actual or constructive notice exists ... do not appear to leave room for application of the doctrine [of res ipsa loquitur].) (See also Van Dorn v. City & County of S.F. (1951) 103 Cal.App.2d 714, 716, 230 P.2d 393, in which the court stated, without citation of authority, that " res ipsa does not apply" to proof of notice to the City of the defective condition.) There seems no reason, however, why res ipsa loquitur cannot be used to raise an inference of simple negligence as set forth in alternative (a) of Government Code section 835.
We note that Government Code section 830.5 states: " [T]he happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition." However, this statutory statement of a legal truism is preceded by the caveat " Except where the doctrine of res ipsa loquitur is applicable." The Senate Legislative Committee's Comment to this legislation, which was adopted in 1963, states: " ... the section does not prevent the use of the doctrine of res ipsa loquitur in appropriate cases." (See legis. committee com., 32 West's Ann.Gov.Code (1980 ed.) § 830.5, p. 281.) Van Alstyne suggests that the " appropriate" case would simply be one in which " all of the requisites of the res ipsa loquitur doctrine are satisfied," and makes reference to a number of cases which invoke res ipsa in analogous situations in private tort litigation. (Van Alstyne, supra, § 3.80 at p. 307.) Interestingly, it appears there is no judicial decision specifically approving the use of res ipsa loquitur to establish negligence by a governmental employee. We see no reason, however, not to adopt the reasoning of Professor Van Alstyne. If a governmental entity is exposed to liability based upon the negligent conduct of its employees, and the " negligence" in question is defined as is negligence in any other circumstance, it seems logical that the plaintiff can establish the negligence by the same evidentiary means available to any other defendant.
The present statutory framework for governmental immunity and statutory liability was adopted in 1963. The previous statute, the Public Liability Act of 1923, had no provision similar to subdivision (a) of Government Code section 835. Nevertheless, it had been held that governmental entities were liable under that act for dangerous conditions created by the negligence of their employees. (Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246, 2 Cal.Rptr. 830.) (See legis. committee com.— senate, 32 West's Ann.Gov.Code (1980 ed.) § 835, p. 301.) An old case decided under this former law held that a plaintiff suing for damage resulting from a broken city water main could rely upon res ipsa loquitur, after having established that the break was the kind which would not ordinarily occur absent negligence in the management of the system. (Buffums' v. City of Long Beach (1931) 111 Cal.App. 327, 328-330, 295 P. 540.) In Anderson v. County of Santa Cruz (1959) 174 Cal.App.2d 151, 344 P.2d 421, where the court applied the same law of governmental liability, it was held that the trial court was correct in refusing to give an instruction on res ipsa loquitur in a case of damage resulting from fire. It is evident in that case, however, that the basis for the refusal to give the instruction was that the plaintiff had failed to establish one of the elements of res ipsa loquitur, namely that the instrumentality causing damage (the fire) was under the exclusive control of the defendant governmental entity. (Id. at pp. 154, 155, 344 P.2d 421.)
To summarize: There is no reason why Brown could not rely upon the doctrine of res ipsa loquitur to establish a prima facie case of negligence on the part of the school district. Brown was required only to establish those traditional requisites for the doctrine— in terms of evidence from which a finder of fact could conclude the requisites established. We believe Brown did [284 Cal.Rptr. 861] this. The meat was on the floor of the hallway, and appeared fresh when removed from the heel of Brown's boot. Access to the hallway was through a door usually locked by keys controlled by district employees. Vendors or visitors could enter only after an employee had unlocked the door. An employees' lounge and a picnic table were provided at the building. Brown stated he had seen people eating lunch in the area. He further stated he did not bring the meat into the hallway. An inference can be made it was unlikely that Brown, at the building for the purpose of delivering computers, or Balles, there to pick up saw blades, would have had any reason to carry lunch meat into the hallway. This was not an area frequented by students or people other than district employees. A jury could have found it more probable than not that a district employee was responsible. Here, the evidence presents a question of fact as to whether the conditions required for application of the doctrine of res ipsa loquitur are present. In that this is an issue properly decided by a finder of fact, we hold the court erred in granting summary judgment. (Cf. Moreno v. Sayre (1984) 162 Cal.App.3d 116, 125, 208 Cal.Rptr. 444.)
DISPOSITION
The judgment is reversed.
WIENER, Acting P.J., and HUFFMAN, J., concur.