Opinion
B162484.
11-24-2003
CATHERINE COX, Plaintiff and Appellant, v. MACERICH CORPORATION, INC., Defendant and Respondent.
R. M. Anthony Cosio for Plaintiff and Appellant. Law Offices of Brian Hummel and Keith W. Farley for Defendant and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Catherine Cox appeals from a grant of summary judgment on her negligence claim against respondent Macerich Lakewood, LLC. The basis of her claim was a slip and fall accident that occurred while appellant was exiting the Lakewood Mall, owned by respondent.
In April 2001, appellant filed a complaint for negligence alleging that she slipped on something that fell from a tree and was lying on or near the sidewalk that leads to and from the mall. The complaint alleged that respondent "failed to maintain the premises in a safe condition for the use of the patrons of [the] mall in that they maintained or caused to be maintained certain trees which have as a product certain fruits which are known to shed and fall from said tree and which are dangerous when stepped on and liable to cause persons to slip and/or fall and injure themselves."
Respondent moved for summary judgment. Its statement of undisputed facts set forth evidence that, just prior to her fall, appellant was looking down at the sidewalk. She observed seed pods on the grass adjacent to the sidewalk and on the sidewalk near the grass. She did not see anything in her path, and assumed that something fell from the tree just before her fall. These facts were established by appellants deposition testimony.
Respondent further sought to establish through the declaration of the general manager of the mall, who had held that position since 1981, that the trees adjacent to the sidewalk where appellant fell were planted by the City of Lakewood during a redevelopment campaign in 1981; that respondent had no knowledge of any other falls in that area prior to the date of the incident; and that the sidewalk "was patrolled and cleaned on multiple times on a daily basis seven days a week by [respondents] onsite janitorial contractor, Service Management Systems, Inc." The general managers statement that the trees were planted by the City of Lakewood was based on information and belief.
Appellant did not dispute respondents lack of knowledge concerning any prior injuries or that she said a seed pod fell from the tree just before her fall. She disputed that the trees were planted by the City of Lakewood. Appellant also disputed the characterization of appellants deposition testimony, taking the position that the seed pods were in more than a few places on the sidewalk. Appellant argued that respondent had constructive knowledge that the trees in question dropped prickly, round seed pods that could constitute a slip and fall hazard.
After the filing of the motion for summary judgment, appellant filed a motion to reopen and extend discovery. In addition, appellant filed a supplemental opposition to the motion for summary judgment on the ground that additional discovery was needed to establish whether respondent or the City of Lakewood had planted the trees. Appellants counsel explained that he had substituted in shortly before the arbitration. Prior to that, appellant had been representing herself because her original counsel had to drop out due to a medical condition. Appellant also sought an opportunity to discover what type of trees were planted and time to obtain "an expert witness to confirm that the trees in question are liquid amber trees which have a natural tendency to drop seed pods on a regular basis year after year." Appellant claimed that respondent had previously conceded the trees were liquid amber and had a natural tendency to drop seed pods, but had changed its position for the summary judgment motion.
The trial court denied the motion to continue or reopen discovery. It granted the motion for summary judgment, stating in its minute order: "[Appellant] alleges premises liability and general negligence for failing to properly maintain the premises. [Respondent] owed a duty to exercise ordinary care to keep its premises in a reasonably safe condition. [Citation.] The standard to be applied to determine if the duty has been met is whether the property owner has acted in management of the property as a reasonable person in view of the probability of injury to others. [Citation.] [Respondent] proffered evidence that the sidewalk and adjacent areas were patrolled by an onsite janitorial contractor. [Citation.] [Appellant] offers no evidence that [respondent] was negligent in the maintenance of the premises. [Citation.] [¶] In addition, a plaintiff must establish that the defendant had actual or constructive knowledge of the alleged dangerous condition. [Citations.] Here, [appellant] testified that she believed the seedpod upon which she allegedly slipped fell down a moment before she fell. [Citation.] From that, the only inference that can be drawn is that [respondent] did not have notice of the alleged dangerous condition and therefore, it could not have prevented the accident." In granting the motion, the court sustained objection to the declaration of respondents general manager, essentially permitting into evidence only the portion that dealt with the janitorial services maintenance of the sidewalks.
Judgment was entered on the order. This appeal timely followed.
DISCUSSION
I
Initially, we look at whether the trial court erred in denying the motion for continuance. Code of Civil Procedure section 437c, subdivision (h), provides that "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."
Appellant sought to reopen discovery to clarify whether respondent or the City of Lakewood planted the trees and whether the trees were known to drop seed pods on a regular basis. We do not agree that these facts were essential to the opposition. Appellants misperception may derive from cases such as Jones v. Deeter (1984) 152 Cal.App.3d 798. In Jones, plaintiff tripped on a break in a sidewalk caused by the roots of magnolia trees pressing up from underneath the concrete. The trees grew on a grassy strip located between the sidewalk and the public street in front of defendants home. The trees had been planted by the city, not the defendant. Although a statute required owners of lots fronting on public streets to maintain the sidewalks in front of their homes, the court recognized the "`Sidewalk Accident Decisions" doctrine, under which "the abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition." (Id. at p. 803.) Because "the disruptive roots extended from a tree which was located in the parkway, rather than in defendants front yard, . . . the unsafe condition caused by the magnolias [was] attributable to the City, not to defendant" and "defendant [was] not liable in tort for injuries caused by this condition." (Id. at p. 804; compare Albert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320 [where plaintiff tripped on an upturned, jagged piece of sidewalk caused by the root of a tree planted on defendant homeowner associations property, court reversed judgment of nonsuit in favor of defendant].)
Having stated this rule of nonliability, however, the court in Jones noted that "the sidewalk accident decisions doctrine does not apply . . . where the property owner left some dangerous or slippery material on the sidewalk and a traveler tripped on this material." (Jones v. Deeter, supra, 152 Cal.App.3d at p. 803.) For example, in Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, the owner of property adjacent to a public sidewalk was deemed liable where plaintiff slipped on a piece of gristle left on the sidewalk by third parties either delivering meat to a tenant or removing waste. The court distinguished it from cases "involv[ing] structural defects in the sidewalk, the repair of which requires capital outlay and is usually done by the municipality" because in the case before it, "the dangerous matter could be removed by merely washing down or sweeping the sidewalk, work not usually done by the city." (Id. at p. 858.) Similarly, in the case before us, there is no suggestion that appellant tripped on a structural defect in the sidewalk caused by the trees or their roots. Instead, her fall was allegedly caused by a substance that respondent conceded it was responsible for removing. Accordingly, there was no need for discovery concerning the ownership of the trees.
Appellants alternate contention that an extension of discovery was needed to confirm the type of tree involved to enable an expert witness to render an opinion concerning their dangerousness makes no sense. These activities could have been undertaken without regard to the discovery cut off.
II
Appellant next argues that the trial courts ruling on evidentiary objections eviscerated the general managers declaration, and undermined the foundation of the summary judgment motion. The court sustained objection to the general managers declaration as it pertained to who planted the trees and how often the janitorial service swept the sidewalks. Appellant points out that the court expressed surprise on the record that respondent had not supplied more specific information or documentation concerning the sidewalk maintenance schedule and described the moving papers as "weak." We agree with the trial court in this regard. Had the only evidence been the general managers declaration testimony that the janitorial service utilized by the mall generally cleared the area "multiple" times a day, the motion would likely not have been granted. But respondent also presented deposition testimony from appellant indicating that the seed pod responsible for her accident had just fallen from the tree.
Appellant appears to believe that respondent can be deemed negligent because it could not have been ignorant of "seeds pods falling on their sidewalks for the past twenty years . . . which, when stepped on, cause[] one to lose their balance while walking as evidenced by [appellant] in the instant case." This is not the law. Property owners are not liable merely because they have knowledge that a trip hazard might occur or is likely to occur. "Because the owner is not the insurer of the visitors personal safety [citation], the owners actual or constructive knowledge of the dangerous condition is a key to establishing its liability." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) Existing negligence law does not "permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred." (Ibid.) "[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owners negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it." (Ibid.) If a plaintiff cannot show actual knowledge, he or she must show "that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence." (Ibid.) "Most Courts of Appeal hold that a defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection. These cases observe that as to business invitees, the owner should conduct frequent inspections." (Id. at p. 1207.)
The plaintiff in Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, like appellant here, took the position that constructive knowledge could be predicated on the fact that defendant could "reasonably anticipate" that a dangerous condition would "regularly arise." (Id. at p. 475.) The defendant store leased space to a fast food outlet, and was aware that customers regularly shopped and browsed while consuming food and beverages from the outlet although posted signs asked them not to. The plaintiff slipped on a french fry while shopping in an area that had been inspected and swept 30 to 45 minutes earlier. The jury found in favor of plaintiff, having been instructed that "if a business proprietor knows or should know that accidental, negligent or intentionally harmful acts of third persons are occurring or are likely to occur on the premises, the proprietor has the duty to warn or otherwise protect the visitor against such harm." (Ibid.) In other words, "the jury could have found [defendant] liable based on [defendants] practice of permitting third parties to consume food inside the store without [defendant] having either actual or constructive knowledge of the particular spill." (Id. at pp. 475-476.)
The appellate court held that this was error. "[U]nder current California law, a store owners choice of a particular `mode of operation does not eliminate a slip-and-fall plaintiffs burden of proving the owner had knowledge of the dangerous condition that caused the accident. Moreover, it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries, i.e., they would be insurers of the safety of their patrons. For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding." (Moore v. Wal-Mart Stores, Inc., supra , 111 Cal.App.4th at p. 479.)
We agree with the court in Moore that constructive knowledge does not arise where the defendant knows only that a hazardous condition could occur on the property. Every shop owner has that knowledge, and such a rule would be the equivalent of imposing strict liability. Constructive knowledge arises where the hazard exists for a sufficient period of time to be discovered. Generally, the question of whether the owner had constructive knowledge of the existence on the specific hazard is a question of fact for the jury. (Moore v. Wal-Mart Stores, Inc., supra , 111 Cal.App.4th at p. 479.) Here, however, the evidence established that the seed pod had just fallen. The trial court was, therefore, fully justified in granting summary judgment.
III
Appellant contends that the trial court did not sufficiently specify its reasons for granting the motion as required by Code of Civil Procedure section 437c, subdivision (g). Our review of the trial courts order leads us to disagree. The order fully explains the reasons for the courts determination.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL (C.S.), P.J. EPSTEIN, J. --------------- Notes: The complaint had been pending just over a year when the summary judgment motion was filed.