Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C-05-01482
McGuiness, P.J.
Kay Campbell (appellant) appeals from a judgment entered in favor of Costco Wholesale Corporation (respondent) after the trial court granted respondent’s motion for nonsuit. She contends that nonsuit was improper because (1) there was sufficient evidence to permit a jury to find in her favor; (2) the trial court erred in ruling that expert testimony was necessary to establish respondent’s negligence; and (3) the trial court erred in excluding relevant evidence. We reject the contentions and affirm the judgment.
Factual and Procedural Background
Appellant filed a personal injury action against respondent for injuries she sustained when she tripped on a flatbed cart at respondent’s store in Richmond, California (the Richmond Costco store). She alleged two causes of action: (1) negligence—premises liability; and (2) negligence. Trial commenced on February 14, 2007. After appellant gave her opening statement, respondent moved for nonsuit on the ground that expert testimony was necessary to establish negligence. The trial court denied the motion.
At trial, appellant testified that at about noon on August 1, 2004, she went to the Richmond Costco store with her business partner, Susan Billiau. She had shopped at the Richmond Costco store on numerous occasions before that date and was aware that the store had both regular shopping carts and larger flatbed carts for customer use. She had never used a flatbed cart because it was too large for her to push around.
While at the Richmond Costco store on August 1, 2004, appellant walked from a main aisle to a side aisle to look for coffee. After locating and picking up a can of coffee in the side aisle, she returned to the main aisle and tripped on a wheel of a flatbed cart. Appellant fell on her nose, “passed out” and was unconscious for a few minutes, and suffered injuries to her nose, shoulder, arm, wrist and leg. Appellant testified that she did not see the flatbed cart in the main aisle when she initially walked through to get the coffee. She also did not see the cart or its wheel before falling to the ground. She did not recall seeing a box on the cart when she tripped and fell. According to appellant, the cart on which she tripped was “completely gray.” A cart similar to the one on which appellant tripped was on display in the courtroom for the jury, and photographs of another similar flatbed cart were also introduced into evidence.
Appellant’s counsel read excerpts from the deposition testimony of Pat Asch, who was general manager of the Richmond Costco store on August 1, 2004. According to Asch, the Richmond Costco store had approximately 25 to 30 flatbed carts and 900 shopping carts available to customers at the time appellant was injured. Asch stated that flatbed carts were made available for use by customers who wished to purchase large and bulky items or a large quantity of items that did not safely fit within a shopping cart. She explained that there are many more shopping carts than flatbed carts to reflect “the percentage of the type of purchases that are made by [customers].”
Susan Billiau testified that she went to the Richmond Costco store with appellant on August 1, 2004. She had been looking for appellant and had walked toward the back of the store when she saw appellant lying on a gray concrete floor near a gray flatbed cart. She testified that she did not see appellant fall. She recalled seeing a large cardboard box on top of the cart, and also recalled overhearing a customer say that the cart on which appellant had tripped was hers (the customer’s). Billiau, appellant and an employee of the Richmond Costco store walked to an office where the employee asked appellant some questions and an incident report was completed.
Respondent renewed its motion for nonsuit at the close of appellant’s case in chief on the ground that appellant had not presented sufficient evidence of respondent’s negligence. The trial court granted the motion, and judgment of nonsuit was entered on March 23, 2007.
Discussion
1. Lack of substantial evidence
Appellant contends the trial court erred in granting respondent’s motion for nonsuit because there was sufficient evidence for a jury to find that respondent was negligent. We disagree.
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.” ’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “The rules governing the granting of a nonsuit, however, do not relieve the plaintiff of the burden of establishing the elements of his case. The plaintiff must therefore produce evidence which supports a logical inference in his favor and which does more than merely permit speculation or conjecture. [Citation.] If a plaintiff produces no substantial evidence of liability or proximate cause then the granting of a nonsuit is proper. [Citation.]” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) In reviewing a grant of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.)
“To recover for negligence, the plaintiff must show the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a cause in fact of the plaintiff’s injuries.” (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 252.) Premises liability is a form of negligence in which a property owner has a duty to exercise ordinary care in managing its premises to avoid exposing people to “an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) In defining this duty, foreseeability plays a significant role. (Id. at p. 1620.)
Here, there was no substantial evidence that the existence of flatbed carts in the Richmond Costco store created an “unreasonable risk of harm” to appellant and other customers. There was no substantial evidence that the carts were poorly designed or that the particular cart on which appellant fell was defective or dangerous. There was no evidence of prior instances of customers tripping on a wheel of a flatbed cart. “Because [a store] owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of [a] dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) Appellant made no showing that the Richmond Costco store had any notice that the flatbed carts or the particular one on which appellant fell presented a dangerous condition.
Appellant contends the jury should have been allowed to determine whether a flatbed cart left in an aisle “for a few moments” presented a dangerous condition that should have been discovered by reasonable inspection. Whether a dangerous condition existed long enough for a reasonably prudent person to have discovered it is ordinarily a question of fact for the jury. (Ortega, supra, 26 Cal.4th at p. 1207.) However, if the evidence does not support a reasonable inference that the hazard existed long enough to be discovered in the exercise of reasonable care, the issue of notice may be resolved as a matter of law. (Ibid.) In Girvetz v. The Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 831-832, for example, the evidence was insufficient as a matter of law to support an inference of constructive notice of a banana on the floor where the only evidence relevant to notice was that a customer had seen the banana on the floor a minute and a half before the plaintiff slipped and fell on it.
Here, appellant did not present any evidence tending to show that the cart was in the aisle long enough to be discovered by respondent in the exercise of reasonable care. In fact, appellant testified she did not see the cart in the main aisle when she first walked through, but that she tripped on it just moments later when she returned to the main aisle. Appellant acknowledges on appeal that the cart was left in the aisle for only “a few moments.” There was insufficient evidence to present to the jury the question of whether a flatbed cart left in an aisle “for a few moments” constituted a dangerous condition.
Appellant asserts there was other evidence to support a finding in her favor. First, she points out that the existence of many more regular shopping carts than flatbed carts created a dangerous condition because it made it less likely that customers would “look out [for] and be mindful of stumbling over the flatbed carts,” and therefore more likely they would trip on a flatbed cart. Next, she states that the color of the flatbed cart blended in with the color of the store floor, making the cart difficult to see. Finally, she suggests the jury could reasonably infer from the fact that appellant tripped on a wheel, and from observing the sample cart and photographs, that the wheels protruded from under the cart, thereby creating a dangerous condition.
“[O]ne can conjure up all manner of extreme measures which might have prevented this particular injury but that is not the issue. The fundamental inquiry is whether the duty of a landowner to exercise reasonable care in preventing injury to persons on the premises . . . required such measures.” (Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 1287.) While eliminating flatbed carts from the Richmond Costco store would have prevented this particular injury, it was certainly reasonable for a warehouse store such as Costco to make flatbed carts available to customers who wished to purchase larger items. It was also reasonable that there were fewer flatbed carts than shopping carts to reflect “the percentage of the type of purchases that [we]re made by [customers].” Further, the fact that a large object that has a legitimate function in a business place was similar in color to the surrounding floor did not raise an inference that respondent was subjecting its customers to an “unreasonable risk of harm.” Finally, appellant’s testimony that she tripped on a wheel, combined with the presentation of a sample cart and photographs, did not constitute sufficient evidence “to permit a jury to find in [appellant’s] favor.” (See Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291.) Evaluating the evidence in the light most favorable to appellant, we conclude it was insufficient to permit a jury to find in appellant’s favor.
2. Expert testimony
Appellant contends the trial court erred in granting nonsuit because it based its decision on an erroneous ruling that expert testimony was necessary to establish respondent’s negligence. Appellant’s argument fails because the trial court’s decision was not based on a ruling that expert testimony was required. The trial court stated: “. . . I didn’t decide [to grant the motion for nonsuit] specifically based on lack of expert testimony. There were some elements that were attempted to be raised or argued which would have called for expert testimony, but let me go through my list of what evidence I thought was lacking.” The court went on to describe the numerous ways in which the evidence presented was inadequate: “There was . . . no substantial evidence presented to establish that the fact defendant had flatbed carts available for use by customers was negligence. There was no evidence presented that the specific type of flatbed cart involved in plaintiff’s accident presented any unreasonable risk of harm to plaintiff or other customers. There was no evidence that the design of the cart was unsafe or created an unreasonable risk of injury, and[/]or that defendant’s inspection or failure to inspect carts created [an] unreasonable risk of harm. [¶] There was no evidence that defendant failed to use reasonable care to keep the premises and the cart involved in this incident in a reasonably safe condition. There was no evidence that carts on the premises for use by customers created a dangerous or an unsafe condition. There was no evidence that the carts themselves created an unreasonable risk of injury.”
The trial court then stated: “There was no evidence that there was a defect in the cart, hidden or otherwise, which—that is one issue that I believe would have required expert testimony, but there was no evidence of that, expert or otherwise—or that the cart, itself, was dangerous or hazardous.” (Italics added.) Appellant relies on this statement in asserting that the trial court erred by basing its decision to grant nonsuit on the lack of expert testimony. The statement, however, in the context of the entire ruling, is reasonably interpreted to mean that regardless of whether expert testimony was required, there was no substantial evidence of any kind—“expert or otherwise”—to prove the cart was defective. This finding by the trial court was supported by the record because even if expert testimony was not required to show the cart was defective, appellant had failed to present any substantial, “non-expert” evidence of such a defect. The trial court’s decision to grant nonsuit was not based on an erroneous ruling that expert testimony was required, but on a finding that appellant had presented no substantial evidence of any kind to support a finding in her favor.
3. Excluded evidence
“If relevant and material evidence was excluded which would have allowed the plaintiff to overcome a nonsuit, the judgment must be reversed. [Citation.]” (Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818, 1825, disapproved on another ground in Bonds v. Roy (1999) 20 Cal.4th 140, 149, fn. 4.) Appellant contends that “any evidence the court found lacking on the issue of respondent’s negligence at trial was due to a number of erroneous evidentiary rulings that improperly excluded highly probative and admissible evidence.”
a. Prior accidents involving flatbed carts
Appellant contends the trial court erred in excluding the portion of Asch’s testimony in which she “admitted there were prior accidents involving flatbed carts.” The trial court excluded the following portion of Asch’s testimony:
Q. Do you know of anyone other than my client that has ever fallen over a flatbed cart?
A. Not specifically that I recall.
Q. Generally do you know of any such?
A. Generally I believe it has happened before.
Q. On how many occasions?
A. I have no idea.
Q. Let me ask you. As to those falls, do you know if a record has been kept of who has fallen?
A. I believe there is a record.
Q. Who would keep that record?
A. I believe it is available through corporate.
Q. That would be where?
A. Issaquah, Washington.
Q. Would that be for your store in Richmond?
A. Yes.
Q. Is it the policy and practice if there is such an incident of a person falling by reason of a flatbed cart that that report is turned into corporate?
A. Yes.
Q. Have you ever yourself turned in such a report?
A. Not to my recollection.”
It is well settled that “ ‘[b]efore evidence of previous [accidents] may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question.’ [Citations.]” (Martindale v. City of Mountain View (1962) 208 Cal.App.2d 109, 116.) “The question of admissibility is primarily one for the trial court and is confined to its sound discretion. [Citation.]” (Ibid.)
The trial court acted well within its discretion in excluding the above testimony on the ground that it was irrelevant and prejudicial under Evidence Code section 352, which provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Asch’s testimony only vaguely showed that there may have been prior incidents of individuals falling on flatbed carts. Appellant did not elicit further testimony regarding these alleged prior incidents, and there was no evidence that the incidents were “the same or substantially similar to the one in question.” (See Martindale v. City of Mountain View, supra, 208 Cal.App.2d at p. 116.) In the absence of such information, it would have been highly prejudicial to present the excluded portion of Asch’s testimony to the jury to show the flatbed cart constituted a dangerous condition.
Appellant asserts the trial court also erred because it “failed to weigh the factors or balance the pros and cons of admitting or excluding the evidence.” “Section 352 does not require the recitation of any ‘magic words.’ What is important is that the trial court ‘make apparent on the record, prior to exercising its discretion, its consideration of the factors which threatened prejudice against the probative value of the evidence.’ [Citation.] (Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1674.)
Here, although the trial court did not explicitly mention prejudice or probative value, it made clear that it had balanced those factors in making its ruling. It considered argument from appellant that the testimony was “critical to [her] case” because it showed that respondent knew or should have known of prior incidents. It considered respondent’s argument that the testimony should be excluded because there was no evidence that the alleged prior incidents were substantially similar to the incident in question. Noting that Asch’s testimony showed only that she “[g]enerally . . . believe[d]” that prior accidents had occurred and that she had “no idea” how many prior incidents there were, the trial court stated that the testimony “reek[ed] of speculation.” It is apparent from the record that before ruling on the matter, the trial court considered the factors that threatened prejudice against the probative value of the evidence.
b. Costco Cart Handler Training Manual
Appellant contends the trial court erred in excluding evidence of a training manual for cart handlers entitled Costco “Cart Handler Training Manual.” Appellant asserts: “Specifically, the training manual stated that carts, flatbeds, and boxes were to be kept away from all warehouse exit doors, fire lanes, and handicapped parking areas. . . . The trier of fact could deduce from this information that the carts would create a safety risk if they were left in certain areas of the store.” Appellant’s argument is not persuasive.
As appellant acknowledges, the manual merely instructs store employees to keep carts and flatbeds away from certain, specified areas of the store and parking lot. It does not identify safety concerns specific to flatbed carts, and contains no instructions relating to unattended carts. The manual was therefore irrelevant to the issues of whether respondent had constructive notice of a dangerous condition, whether flatbed carts are dangerous or unsafe, or whether their existence in the store created an unreasonable risk of harm. The trial court properly excluded the manual on the ground that there was nothing in it “that tends to prove or disprove any disputed issue in this case.”
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Siggins, J., Jenkins, J.