Opinion
Santa Clara County Super. Ct. No. CV045509
NOT TO BE PUBLISHED
ELIA, J.
Plaintiff Theresa Michael seeks review of a summary judgment order entered in favor of defendant Smartparks-San Jose, Inc., in her action for injuries she sustained at Raging Waters, an amusement park owned and operated by defendant. Plaintiff argues that defendant was not entitled to summary judgment because there were triable issues of material fact as to whether her injuries were caused by a dangerous condition on defendant's property and whether defendant had notice of that condition. We find no error and must therefore affirm the judgment.
Background
There is no dispute about the events leading to plaintiff's injury. On July 25, 2004, while plaintiff was at Raging Waters with her son and his friend, they all decided to go on a water slide called ShotGun Falls. After walking up the stairs to the top of the slide, plaintiff decided to use the bathroom and meet the other two at the bottom of the ride. She descended a few wooden stairs and then started down the first set of concrete stairs. As her heel landed on the fourth concrete step, she felt some slippery "gook" underneath and slipped, injuring her wrist in the resulting fall. Plaintiff walked down the remaining steps and looked back up. She could not see the flat part of the steps, but on the vertical face she saw various shades of light to dark green, which she believed consisted of moss or algae, "or gunk, I guess."
Plaintiff filed this action on July 20, 2005, asserting general negligence and premises liability. In early July of 2006 defendant moved for summary judgment, or alternatively, summary adjudication. Defendant contended that plaintiff could not prove either the presence of a dangerous condition on the steps to ShotGun Falls or notice by defendant of such a condition. Restating its position in terms of causation, defendant further argued that plaintiff could not establish that any foreign substance on the steps caused her to fall.
The superior court agreed with defendant that plaintiff would not be able to prove that defendant had actual or constructive knowledge of any dangerous condition on the step. Accordingly, the court granted the motion and entered judgment for defendant.
Discussion
1. Scope and Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the action or cause of action has no merit--that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subds. (a), (p)(2).) When the burden of proof at trial will be on the plaintiff by a preponderance of the evidence, the moving defendant "must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff 'does not possess and cannot reasonably obtain, needed evidence' " to support a necessary element of the cause of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, quoting Aguilar, supra, 25 Cal.4th at p. 854; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
If the defendant fails to meet this initial burden, it is unnecessary to examine the plaintiff's opposing evidence; the motion must be denied. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60.) However, if the defendant makes a prima facie showing that justifies a judgment in its favor, the burden then shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) "The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." (Code Civ. Proc., § 437c, subd. (p)(2).)
On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Daly v. Yessne (2005) 131 Cal.App.4th 52, 58.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85; Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.)
We recognize that summary judgment " 'is a drastic measure which should be used with caution so that it does not become a substitute for trial.' " (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 610; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) Consequently, "[i]n performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) "We need not defer to the trial court and are not bound by the reasons for the summary judgment ruling; we review the ruling of the trial court, not its rationale." (Knapp v. Doherty, supra, 123 Cal.App.4th 76, 85.)
2. Allegations of the Complaint
Because summary judgment review is defined by the issues raised in the pleadings, we first direct our attention to the material allegations of plaintiff's complaint. In the negligence cause of action, plaintiff alleged that defendant's employees had breached their duty to provide a safe place for her while she was at the water park. In her claim for premises liability, she alleged that she was an invited guest in an area of general public use that "had mold and other substances on it which caused her to fall and sustain serious injuries." Defendant had "negligently owned, maintained, managed, and operated" the premises and had failed to guard against or warn about a dangerous condition.
It is undisputed that to prove negligence, plaintiff would have to establish the elements of duty, breach, causation and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) On appeal, plaintiff focuses on the cause of action for premises liability. To establish negligence on this theory, plaintiff would have to prove that defendant had actual or constructive notice of a dangerous condition on its premises and that it had such notice in time to correct the condition. (Id. at p. 1203.) A business owner exercises ordinary care "by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved." (Id. at p. 1205.) "Because the owner is not the insurer of the visitor's personal safety . . . the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner's lack of knowledge is not a defense, '[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier "must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. . . ." ' " (Id. at p. 1206.)
Where, as here, a claim of negligence is based on an alleged failure to correct a dangerous condition, "the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. [Citation.] 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. [Citation.] Several courts believe that shifting the burden to the defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred." (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206.)
3. Defendant's Burden
In its summary judgment motion defendant specifically argued that plaintiff would not be able to establish that a dangerous condition existed--or even if such a condition did exist, that defendant had notice of it. Defendant supported its position with the testimony of plaintiff herself as well as inspection records and the testimony of Raging Waters staff. In her deposition plaintiff testified that she never saw mold or algae on the step on which she slipped. When she looked back up the stairs after her fall, she saw what appeared to be moss or algae on the vertical face of the steps, but she could not see what was on the top of any step, and she never examined the fourth step after her fall. Plaintiff admitted that pursuant to a park policy, Raging Waters staff had conducted three safety inspections of all walkways and stairways before opening the park each day, including the day of the accident. A trained maintenance employee completed a checklist for ShotGun Falls that day confirming that "all entrances, exits, and stairways [were] clear of any obstacle and [were] safe for patron use." Maintenance personnel were not specifically instructed to look for moss or algae, but they were told to look for anything that was not part of the concrete steps. An "Aquatics Safety Checklist" that day involved a second inspection by an "aquatic lead" who, like the maintenance inspector, walked up the stairs looking for any potential hazards. The inspector that day indicated that the stairs were in good condition and there was no debris around the structure. A third pre-opening inspection by a staff medic ensured that the stairways and walkways presented no "visually noticeable safety hazards" to park patrons. In addition, between five and eight lifeguards used the stairs every day and were required to report any danger they saw. Finally, the stairs and walkways were pressure-washed every three days. According to Juan Richards, the director of operations, if any inspecting employee had seen anything unsafe, he or she would have noted it.
Defendant also supplied testimony from park employees that an inspection was performed after plaintiff's fall. Talance Orme, the duty manager that day, sent Jose Medina to examine the concrete steps. Medina reported 30 minutes later that he had found nothing wrong with the steps. Orme then took a photograph of the steps. He observed dirt on both the horizontal and vertical surfaces, but mostly on the vertical "face," and he did not see mold, algae or any other "foreign substance." Orme did not consider dirt to be a safety issue; rather, it was only aesthetically "unpleasing" for the guests. Juan Richards, the operations manager, similarly testified that he did not consider dirt to be a hazard. Even when the dirt was wet, he explained, the steps were not slippery. Richards himself inspected the stairs of ShotGun Falls shortly after the accident. He saw no mold, algae, or other foreign substance, nor any other dangerous or defective condition which could have caused plaintiff to fall.
Defendant maintains on appeal that these extensive inspection procedures establish that there was no dangerous condition, no notice of such a condition, and no causation of plaintiff's injury. Although defendant's last argument would be more appropriately directed at the element of breach of its duty of care, we nevertheless agree that defendant's evidence provided a sufficient basis for the superior court's conclusion that the undisputed facts demonstrate no actual or constructive notice of a dangerous condition on the step where plaintiff slipped. Defendant was therefore entitled to judgment as a matter of law unless plaintiff's opposing papers revealed triable issues of material fact.
There can be no dispute that defendant had a duty to exercise care in the maintenance of the water park for the benefit of its patrons. (See Civ. Code § 1714 ["Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself"]; see also Rowland v. Christian (1968) 69 Cal.2d 108, 119 [application of Civ. Code § 1714 "entails an inquiry as to 'whether in the management of his property [the owner] has acted as a reasonable [person] in view of the probability of injury to others' "].) Whether defendant breached that duty by failing to inspect for hazardous conditions on the premises is the primary issue presented by plaintiff's claim of negligence. Causation is not relevant if there is no breach of the defendant's duty of care. (See Ortega, supra, 26 Cal.4th at p. 1205.)
Plaintiff was unable to meet this burden. Even if her testimony that she felt a "slimy, slippery" substance under her foot as she stepped down is sufficient to establish a hazard on the step, she had no evidence that this "gunk" was mold or algae or other condition of which defendant should have been aware. Plaintiff's suggestion that the substance was algae was based on the slippery texture under her foot and the green patches on the vertical face of some stairs as she looked back up from the bottom. She did not notice any substance on the fourth step as she climbed or descended the stairs; she admitted that she did not inspect the fourth step after her fall; and she was unable to confirm that it was indeed algae or that the green patches were present on the horizontal flat part of the fourth step. Thus, even if there was a slimy "film" on the step that created a hazard for park guests, there is no evidence that defendant's inspection procedures were unreasonable or inadequate to discover such a condition. Although plaintiff suggested that the dirt observed by Orme amounted to a defective or dangerous condition, she did not offer evidence to support that assertion. On the facts presented, therefore, we must conclude that defendant was entitled to summary judgment.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.