Opinion
NOT TO BE PUBLISHED
Santa Barbara County, Super. Ct. No. 1165675, Denise de Bellefeuille, Judge
Lewis, Brisbois, Bisgaard & Smith, Roy G. Weatherup and Allison Ann Arabian. Pollard, Cranert, Crawford & Stevens, James F. B. Sawyer, for Appellant.
John Derrick, for Respondent.
YEGAN, Acting P.J.
Breadhead, Inc. (Breadhead) appeals from the judgment, after a nonjury trial, awarding respondent Ken Ceder damages of $125,000 in this slip-and-fall case. Breadhead contends the judgment is not supported by substantial evidence that it had notice of the dangerous condition in time to remedy it before the accident. Appellant further contends it was entitled to an offset for the voluntary, pretrial payment of $10,000 it made to respondent. We affirm.
Facts
Breadhead operates the D'Angelo Bakery which located on a paseo, or walkway, running between Parker Way and Gutierrez Street in Santa Barbara. A martial arts studio is also located on the paseo. On the morning of October 18, 2003, Ceder walked along the paseo toward the bakery. He saw what looked like a "dust spot" on the walkway surface in front of him, near the door of the martial arts studio. As he walked over this area, he slipped and fell, injuring himself. Ceder realized that the spot was damp and that what had looked like dust was actually a crust that had formed on top of the damp spot. He believed the spot was comprised of "water, flour-like material and dust or dirt from the atmosphere."
Christopher Wiedmann, the owner of the martial arts studio, saw appellant fall. He testified that he saw, in the area where Ceder fell, "[k]ind of like a mud puddle, this mixture of flour and surface dirt." The puddle was "really slippery." Wiedmann was certain the slippery spot was composed of flour and surface dirt, and that it came from the bakery. The bakery, he testified, uses a high pressure hose to wash off its baking racks, leaving behind wet pavement that is coated with flour, dirt and other debris. Wiedmann testified, "it's clear as a bell that it's flour and water and whatever other dust comes from the street and whatnot." This mixture is on the paseo pavement "all the time," although Wiedmann testified that on the day of Ceder's accident, he did not see bakery workers washing down racks. That morning, he saw moisture in the paseo but not flour or other debris.
The property manager for the building's owner, Raul Rutten, testified that he had "noticed some residue" in the paseo but, "didn't know exactly where it was coming from. And I had -- this had been ongoing for some time." One day, he saw the bakery's general manager "using a pressure washer to clean these bread racks. And at that point it dawned on me what was happening here is this is what I had been seeing prior, was the residue from the cleaning of these racks." Rutten told the general manager that, if the bakery was going to wash its racks in the paseo, it needed to clean off the entire patio area and sweep the debris all the way down the paseo to the drain. He described the residue as milky and pasty. "It was slippery in feel. It was dirty . . . . And when it would dry it dried kind of with a white, you know, sheen." Rutten tours the paseo daily. He testified that he had never noticed what he considered to be an unreasonably dangerous condition.
The trial court found, "it is more likely than not that Breadhead is responsible for the substance that Mr. Ceder stepped on which caused his fall. In other words, they were negligent. [¶] Circumstantially the evidence points to Breadhead's practice of rinsing their bread racks in the alleyway, which I think is a very bad practice. . . . They were warned in advance of the accident by Mr. Rutten . . . ." The trial court found it more likely than not that the spot on which respondent slipped was composed of flour and other materials from the bakery. Appellant had "control over the condition, it created the risk of harm. They had absolute control over the fact that they were washing their materials off in the alleyway, and that any reasonable baker, any reasonable person would be able to foresee the failure to clean those substances would create the hazardous hidden condition that ended up harming Mr. Ceder . . . ."
Discussion
Substantial Evidence
Appellant contends the judgment must be reversed because there is no substantial evidence that it had notice of the dangerous condition in time to remedy it. We are not persuaded.
In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, our Supreme Court reviewed the law regarding a store owner's liability for injuries to a business invitee caused by the dangerous condition of the store premises. "It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe." (Id. at p. 1205.) An injured patron has the burden to prove that the store owner had actual or constructive knowledge of a dangerous condition in sufficient time to correct it, or that the store owner was " 'able by the exercise of ordinary care to discover the condition . . . .' " (Id at p. 1206, quoting Girvetz v. Boys' Market, Inc. (1949) 91 Cal.App.2d 827, 829.) "The courts' reasoning is that if the burden of proving lack of notice were placed on the owner in a slip-and-fall case, where the source of the dangerous condition or the length of time it existed cannot be shown, failure to meet the burden would require a finding of liability, effectively rendering the owner an insurer of the safety of those who enter the premises." (Id., see also Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476 ["In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable."].)
Here, substantial evidence supports the trial court's finding that appellant itself created the dangerous condition that caused Ceder's fall. Both Wiedmann and Ruttan testified that they saw appellant's employees wash down bread racks in the paseo, a practice that left on the pavement a slippery, dusty white residue of flour, grease and dirt. Ceder described slipping on the same kind of residue. Because substantial evidence supports a reasonable inference that appellant created the dangerous condition, further evidence that it had notice of the condition is not required. Appellant created the condition; it therefore knew the condition existed. Ortega, supra, and Moore, supra, are distinguishable for this reason. In both of those cases, the plaintiff was injured because the store owner failed to discover a dangerous condition created by someone else – another store patron or an employee who spilled milk (in Ortega) or food (in Moore) and then neglected to clean up the mess.
This result does not impose strict liability on appellant. As the trial court found, its practice of washing down bread racks in the paseo was negligent – a failure to exercise ordinary care – because it left a slippery residue on the paseo pavement. (Clark v. Di Prima (1966) 241 Cal.App.2d 823, 827.)
Offset
Ceder testified that, before the litigation began, Breadhead's insurer reimbursed him for $10,000 in medical expenses, "without taking any responsibility[]" for his injuries. He provided the insurer with the bills he received from medical care providers and the insurer either reimbursed him for the amount paid or paid the bills directly. Although Ceder presented some evidence concerning the medical expenses he had incurred, the trial court declined to award any economic damages. It explained its damages award as follows: "The Court is unable to award medical damages to Mr. Ceder because of failure of proof. However, the Court awards him $75,000 in past pain and suffering and $50,000 for future pain and suffering for a total award of $125,000." It later denied Breadhead's motions for new trial and judgment notwithstanding the verdict, finding that, "defendant Breadhead is 100% liable for plaintiff's non-economic injuries . . .; the $10,000 paid pre-trial by defendant Breadhead's insurance carrier was for medical expenses and therefore no off-set is appropriate."
Breadhead contends the it was entitled to an offset against the damage award for the $10,000 payment because Ceder is not entitled to a double recovery. We agree that Ceder is not entitled to recover twice for the same medical expenses. However, there is no substantial evidence that he did. The judgment includes damages for pain and suffering only; the pre-trial payment compensated Ceder for medical expenses he incurred. Thus, Ceder was compensated for different items of damages. The trial court did not err.
Appellant's Reply Brief
Breadhead's reply brief raises two new issues: (1) that Ceder failed to carry his burden to prove that Breadhead owned, controlled or maintained the premises where his injuries occurred; and (2) that the judgment improperly expands premises liability for injuries occurring off the property. The discussion of these issues is not accompanied by any explanation (or even acknowledgement) of appellant's failure to raise them in the opening brief. We decline to consider the new issues because to do so would deprive Ceder of an opportunity to respond to them. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
Conclusion
The judgment is affirmed. Costs to respondent.
We concur: COFFEE, J., PERREN, J.