Opinion
B161246.
7-22-2003
CHARISSE MARIA CHIN, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Respondent.
Ammirato & Palumbo, Vincent A. Ammirato and Morton Minikes for Plaintiff and Appellant. Schell & Delamer, Garrin J. Shaw and Candace E. Kallberg for Defendant and Respondent.
INTRODUCTION
Plaintiff Charisse Maria Chin appeals from a summary judgment entered in favor of defendant University of Southern California. Plaintiff contends that inasmuch as the trial court found triable issues of material fact as to whether defendant owed a duty of care to plaintiff and breached that duty by utilizing glass panels too weak to withstand the impact of a walking persons body, the court necessarily erred in finding that such a breach could not have caused plaintiffs injury. We hold that the trial court incorrectly analyzed the causation issue and therefore erred in finding that any breach of duty could not have caused plaintiffs injuries. We consequently reverse the summary judgment and direct the trial court to enter a new order.
FACTS
On April 25, 2001, plaintiff walked into a large glass panel located in the basement of defendants Social Sciences Building, which had been constructed in 1968, near classroom B-37. This glass panel flanked the right side of a pair of glass exit doors. A similar glass panel flanked the left side of the doors. The glass panels were one-fourth inch thick and were solar bronze in color.
According to defendants expert, Don Porter (Porter), a licensed California architect and building contractor, the design and configuration of the Social Sciences Building, including the glass panels flanking the basement exit doors, were in the same condition as when defendant originally caused construction of the building. That design, configuration and construction complied with all Building Codes applicable upon the buildings completion in 1968. The Building Code did not require defendant to follow changes in the Building Code and replace glass windows to comply with those changes.
Plaintiffs experts, John Grist (Grist), also a licensed California architect, in practice since 1965, and Fred M. Johnson, a forensic expert in applied physics, disagreed with Porters conclusions. According to Grist, the glass panel with which plaintiff collided did not comply with sections 91.1708 and 91.1711(d) of the Building Code requirements in effect at the time of construction. Table No. 17-C of section 91.1708 [actually section 91.1711] required the glass panel to be 5/16 inch thick rather than 1/4 inch thick. In addition, as Grist interpreted section 91.1711(d), the glass panels flanking the exit doors should have been constructed of either impact or tempered glass. Had the building plans comported with the Building Code and utilized 5/16 inch safety or tempered glass in the panels flanking the exit doors, the glass would not have shattered from the impact of someone walking into it. Had tempered glass broken, moreover, it would have caused far less serious injuries, if any.
In addition, an archway obscures a large part of the glass panels flanking the exit doors. This could lead a person leaving the Social Sciences Building through the basement exit doors to believe the exit actually is wider than it is, thus causing the person to collide with one of the panels.
Plaintiff was familiar with the placement of the glass panels and the exit doors between them. She had utilized the doors many times without difficulty. On April 25, plaintiff intended to leave the Social Sciences Building through the exit doors that were flanked by the glass panels. As plaintiff walked toward the exit, however, she was preoccupied in thought, with her head lowered. Given her inattention, she collided with the glass panel. The glass shattered when plaintiff collided with it, thus injuring plaintiff, who was unaware that the glass was so weak that it would shatter if she collided with it.
DISCUSSION
Standard of Review
We review the moving and opposing papers de novo to determine whether the moving party negated an essential element of plaintiffs case, demonstrated that there was no possible triable issue of material fact, or showed that plaintiff failed to present evidence crucial to her cause. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In conducting our review, we construe the moving partys papers strictly and those of the opposing party liberally. (Id. at p. 768.)
Negligence and Premises Liability
To prevail on these theories, the plaintiff must demonstrate "that the defendant owed her a legal duty of care" and "breached that duty," which breach proximately caused her injury. (Saelzler v. Advanced Group 400 , supra, 25 Cal.4th at p. 772.) In this case, there is, as the trial court correctly noted, a triable issue of material fact as to whether defendant breached a legal duty of care that it owed plaintiff and a triable issue of material fact as to whether defendant created a dangerous condition on its property. The sole question on appeal, then, is whether the trial court correctly found that plaintiff cannot establish that any such breach or dangerous condition proximately caused her injury.
To establish causation, "the plaintiff must show that the defendants act or omission was a substantial factor in bringing about the injury. [Citations.] In other words, plaintiff must show some substantial link or nexus between [act or] omission and injury." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 778.) As noted in Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 819 P.2d 872, "the substantial factor test subsumes the but for test" of causation. (At p. 1052.) The Supreme Court affirmed in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 941 P.2d 1203 that "California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations." (At p. 968.)
As the Supreme Court recently explained, "the text of Restatement section 432 demonstrates how the substantial factor test subsumes the traditional but for test of causation. Subsection (1) of section 432 provides: Except as stated in Subsection (2), the actors negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. (Italics added.) Subsection (2) states that if two forces are actively operating . . . and each of itself is sufficient to bring about harm to another, the actors negligence may be found to be a substantial factor in bringing it about. [P] Thus, in Restatement section 432, subsection (1) adopts the but for test of causation, while subsection (2) provides for an exception to that test." (Viner v. Sweet (2003) 30 Cal. 4th 1232, 1240.)
In Mitchell v. Gonzales, supra, the Supreme Court labeled the exception to the "but for" causation standard "concurrent independent causes." (54 Cal.3d at pp. 1049, 1052.) " Concurrent independent causes" are "multiple forces operating at the same time and independently, each of which would have been sufficient by itself to bring about the harm." (Viner v. Sweet, supra, 30 Cal.4th at p. 1240, fn. 3.) "Concurrent causes," in contrast, are simply "multiple forces operating at the same time." (Ibid.)
The trial court accepted defendants argument that the sole injury-causing event was plaintiffs collision with the glass panel, not the shattering of the glass. That is not correct, however.
There are not concurrent independent causes of injury operating in this case, for defendants putative negligence in installing weaker, more shatter-prone glass than the Building Code permitted would not have been sufficient in itself to cause the harm. Were a jury to resolve the triable issues of the existence of a dangerous condition of property and/or defendants breach of a duty of care in plaintiffs favor, we would have, instead concurrent causes of injury in this case, "multiple forces operating at the same time." (Viner v. Sweet, supra, 30 Cal.4th at p. 1240, fn. 3.)
The trial courts error was in concluding that for defendant to be liable, its putative negligence in constructing the glass panel had to be the cause of plaintiffs collision with the panel. In fact, it would suffice if defendants negligence so contributed to plaintiffs injury as to be a substantial factor in it, even though such negligence operated in combination with other causes. (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1158.)
It is true that the glass wall would not have broken had plaintiff not walked into it, just as it was true in Mitchell that the boy would not have drowned had he been able to swim. It is equally true, however, that had the glass not shattered, plaintiff would not have been injured by falling shards of glass, just as it was true in Mitchell that had the defendants not placed the boy in a perilous situation, his inability to swim would not have resulted in his death. (Mitchell v. Gonzales , supra, 54 Cal.3d at pp. 1054-1055.) Stated otherwise, "but for" plaintiffs inattention, the glass would not have shattered into falling shards of glass. "But for" defendants negligence, however, the glass also would not have shattered into falling shards. Both causative agencies operated concurrently to cause her injury. In this case, as in Mitchell, if a jury were to find defendant negligent, it would be "illogical and inconsistent on this record to conclude that [defendant was] not a cause in fact of [plaintiffs injury]." (Id. at p. 1055.)
That plaintiffs inattention led her to walk into the glass wall has no effect on the foregoing conclusion. It does nothing more than possibly raise triable issues of material fact as to the extent and effect of her own comparative negligence. (Li v. Yellow Cab Co . (1975) 13 Cal.3d 804, 828-829, 119 Cal. Rptr. 858, 532 P.2d 1226.)
In short, the trial court erred in concluding that plaintiff could not carry the burden of establishing that defendants act or omission was a substantial factor in producing plaintiffs injury. The summary judgment therefore must be reversed.
The judgment is reversed. The trial court is directed to enter a new and different order, granting defendant summary adjudication of the products liability cause of action and denying summary adjudication of the remaining causes of action. Plaintiff is to recover costs on appeal.
I concur: VOGEL (MIRIAM A.), J.
I concur in the judgment only: ORTEGA, J. --------------- Notes: Plaintiff alleged three causes of action: general negligence, premises liability and products liability. She does not challenge summary adjudication of the products liability cause of action.