Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. VC048405, Raul A. Sahagun, Judge.
Russell & Lazarus and Marc Lazarus for Plaintiff and Appellant.
Steptoe & Johnson, Jason Levin and Colleen O’Brien for Defendants and Respondents.
CROSKEY, Acting P. J.
Plaintiff and appellant Dana Clifton appeals from the summary judgment entered in favor of defendant and respondent Chevron Stations Inc. (Chevron) in this action for personal injuries sustained when she tripped and fell over a curb at a Chevron station. The trial court, upon reviewing photographs of the site, concluded that the danger posed by the curb was open and obvious as a matter of law. We disagree and, therefore, reverse.
PROCEDURAL AND FACTUAL BACKGROUND
On September 28, 2005, around 3:00 p.m., Clifton pulled into a Chevron station in Lakewood in order to refuel. She had never used that station before; she stopped there because her car’s fuel warning light went on. Clifton parked near the pump, and walked toward to station’s “Food Mart” in order to pay.
The record is unclear as to whether Clifton paid before or after she refueled. The exact chronology is irrelevant.
The Food Mart is surrounded by a sidewalk and curb, which separate it from the small parking lot. Directly facing the parking lot is a cashier’s window. There are entrances to the Food Mart off to the sides of the window. Clifton intended to enter the store via a door located to the right (from her point of view) of the window.
The location of the gas pumps is also not clear. Apparently, they are beyond the parking lot.
If one is standing in the parking lot facing the cashier’s window, there are disabled parking spots to either side, and a “curb cut” forming a wheelchair ramp directly in front. The ramp is flat where its center meets the parking lot, and flares up to the sides to meet the sidewalk. Between the two disabled parking spots – and in front of the ramp – a small area of the parking lot (narrower than a parking spot) is marked off with blue stripes. This apparently signifies that the area should be kept clear of other vehicles, so that wheelchair users can make use of it to exit and enter their vehicles. The striped area also leads to the ramp. The width of the blue striped area almost but not exactly corresponds with the width of the flat center of the curb cut ramp. In other words, if one were to push a wheelchair up the center of the blue striped area, one could continue forwards up the ramp onto the sidewalk. However, the blue striped area is slightly wider than the flat center of the curb cut ramp. If one were to walk directly along one of the edges of the blue striped area, one would come up against the vertical edge of the curb, as the curb rises on the flared side of the ramp. It is here where Clifton tripped and fell.
Clifton submitted photographs which show the blue edge of the striped area meeting the rising curb. The photographs do not include a ruler or other measuring device demonstrating the height of the curb at this point; there is only a person standing near it for reference. Clifton submitted an expert declaration which indicates that the height differential exceeded two inches. Chevron objected to this language in the expert declaration on the basis that it lacked foundation. The objection was sustained. As the expert indicated that he had only reviewed photographs of the site and had not personally viewed it, the trial court did not err in sustaining the objection. Our review of the photographs indicates the height differential to be approaching “ankle height” on a person wearing flip-flops. Two inches does not appear to be an unreasonable approximation.
At the time of Clifton’s fall, the sun was behind the Food Mart; the building cast a shadow over the entire sidewalk (and curb cut). One approaching the Food Mart from the parking lot would not easily see where the flat center of the ramp ceased and the flared edges began. Clifton was watching where she was walking, but could not see the curb well due to the shadow. She tripped on the sloping edge of the curb (along the flared side of the ramp) although she was well within the blue striped area which, for the most part, led to the flat center of the ramp. Clifton alleges that she sustained injuries in her fall.
On March 21, 2007, Clifton brought suit against Chevron, alleging premises liability. On January 9, 2008, Chevron moved for summary judgment on the basis that it had no duty to protect Clifton from the open and obvious condition of the presence of a curb. In opposition, Clifton argued that the dangerous condition was not the mere presence of a curb, but the entire poorly marked curb cut. In its reply, Chevron argued, for the first time, that if the curb was defective at all, it constituted only a trivial defect. The trial court reviewed the photographs of the accident site and Clifton’s deposition testimony, and concluded, on that basis, “that no reasonable minds could differ in finding that the curb on which [Clifton] tripped is an open and obvious condition.” The court granted summary judgment in favor of Chevron. Clifton filed a timely, although premature, notice of appeal. (Cal. Rules of Court, rule 8.104(e)(2).)
Clifton initially named Chevron Products Company and Chevron Corporation. Summary judgment was entered in favor of Chevron Stations Inc., and there is no dispute that Chevron Stations Inc. is the appropriate defendant. Clifton also named Freydoun Sheikhpour, the presumed owner of the Chevron station. Sheikhpour obtained summary judgment on the basis that he did not purchase the station until after Clifton’s fall. Clifton does not appeal the summary judgment in favor of Sheikhpour.
Clifton did not designate her complaint for inclusion in the record on appeal. Chevron augmented the record with several documents, one of which appended Clifton’s complaint as an exhibit. However, the copy of Clifton’s form complaint included in the motion to augment is incomplete. It is clear that Clifton pleaded a cause of action for negligence; it is unclear whether any other causes of action were alleged.
Clifton also argued that the condition of the curb constituted negligence per se in that it was in violation of building code requirements mandating that the ramp be of “contrasting finish” from the adjacent sidewalk. Chevron responded that Clifton was barred from raising negligence per se as she had not identified the building code requirements in response to form interrogatories. Due to our resolution of the appeal, we need not reach this issue.
ISSUE PRESENTED
The sole issue presented by this appeal is whether the condition of the curb cut constituted an open and obvious danger from which Chevron had no duty to protect Clifton.
Clifton also argues that the trial court erred in sustaining Chevron’s objections to her expert’s declaration. We need not address this contention to resolve this appeal.
DISCUSSION
1. Standard of Review
“‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ (Molko v.Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlierv.Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc.v.Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
2. Premises Liability
The general rule of premises liability requires “a property owner to exercise ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515; See Civ. Code § 1714, subdivision (a).) In determining the extent of a property owner’s duty to warn of a property condition, courts consider whether the condition causing injury is an open and obvious one. “[A]n owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) Thus, the question arises whether the curb, and the dangers posed by the curb, were so open and obvious that a person may be reasonably expected to “perceive that which should be obvious to him in the ordinary use of his senses.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.)
In order to answer this question, we are required to examine, de novo, the photographs of the curb submitted by both Chevron and Clifton. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 15.) “Summary judgment cannot be based on photographs where the reviewing court concludes either reasonable minds might differ regarding whether the photographs correctly depict the alleged defect and the surrounding environs or whether the photographs conclusively establish the defect was open and obvious.” (Ibid.) In this case, we believe reasonable minds might differ on both issues.
First, we consider the accuracy of the photographs in depicting the relevant circumstances. In examining photographs, the court “should take into account such factors as: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., closeup, distant, isolated, in context); (3) the photograph’s perspective (e.g., eye level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fisheye lens, computer manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer).” (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at pp. 24-25.)
In support of its motion for summary judgment, Chevron submitted four photographs of the scene. Each appears to have been taken in broad daylight, without shadows, a circumstance which distinguishes them from the circumstances of Clifton’s fall. The first photograph is taken from a distance and is of somewhat grainy quality; it is difficult to make out the ramp at all in the image. The second is a closer view of the ramp, which identifies the spot where Clifton fell, but not the shadows which impacted her ability to see the curb. The third photograph is so bright it is impossible to see the flare of the curb at all. The fourth photograph is grainy, and does appear to show the flare of the curb, but it is distant and difficult to make out.
In opposition, Clifton submitted ten photographs, taken from various distances, which appear to show the entire sidewalk and curb in shadow. In some of the photographs, the shadow appears so dark as render the curb wholly not visible. In others, outlines of the curb can be made out. In some, taken with a person standing in front of the flaring curb, the shadow does not appear particularly dark at all. While the record contains deposition testimony from Clifton indicating that she did not see the curb due to the shadow, there is no evidence in the record authenticating any of the photographs as properly reflecting the lighting conditions at the time of Clifton’s fall. We conclude reasonable minds can differ regarding whether the photographs accurately depict the conditions surrounding Clifton’s fall – indeed, in the absence of evidence authenticating the photographs, it would be impossible to conclude that the photographs were accurate.
Second, we consider whether the photographs conclusively establish that the defect was open and obvious. For the same reasons, we conclude that reasonable minds could differ on the issue. If the circumstances were such that Clifton was presented with a bright, well-lit curb, easily-distinguishable from the flat of the ramp, a reasonable jury could conclude any defect was open and obvious. If, however, the circumstances were such that the Clifton’s view of the curb was obscured by shadows, leaving her to assume that the blue striped area would lead to a ramp, not a curb, a reasonable jury could conclude that the defect was not open and obvious. Therefore summary judgment should not have been granted.
As the issue of whether the curb presented a trivial defect was raised by Chevron for the first time in its reply in support of its motion for summary judgment, Clifton was never properly given the opportunity to challenge that theory before the trial court. Nonetheless, even if we were to address the issue, we would find that the evidence does not support the conclusion that the defect was trivial as a matter of law. A court determining whether a defect is trivial considers both the size of the defect, and the circumstances surrounding it, including whether a condition (such as darkness) obstructed a pedestrian’s view of the defect. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Here, the record does not indicate the size of the curb at the point Clifton tripped and, as we have discussed, the shadows may have obstructed it from view. Chevron has failed to establish that any defect was trivial as a matter of law.
DISPOSITION
The summary judgment in favor of Chevron is reversed. Clifton shall recover her costs on appeal.
We Concur: KITCHING, J.ALDRICH, J.