Opinion
H050945
08-01-2024
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 20CV002030
BROMBERG, J.
Michele R. (Plaintiff) rented a ground floor unit with three outdoor decks from Alexander Henson (Defendant). In June 2019, while stepping down from one of the decks, Plaintiff slipped and fractured her ankle. Alleging that Defendant had not properly maintained the deck, Plaintiff sued, and after a bench trial, the trial court awarded her approximately $90,000 in damages and costs. Defendant appeals, arguing that he had no duty to maintain the deck and Plaintiff's injury was not caused by his failure to satisfy that duty. For the reasons explained below, we reject both arguments and affirm the judgment.
I. Background
A. Stipulated Facts
The parties stipulated that Defendant owns a house in Carmel Valley with a rental unit at the rear lower level. The unit has two bedrooms as well as a kitchen and living area. Both bedrooms and the kitchen and living area between them have sliding glass doors that open onto a separate wooden deck patio. The center deck has stairs down to a pathway that leads past the west side of the house. The west deck is the closest to the gate leading to the street, and although it has no stairs, the corner of the deck is less than one foot above the yard, which has a field of cobblestones.
In 2012 Plaintiff, along with her husband and son, moved into Defendant's rental unit. In 2015, while still living in the unit, Plaintiff had a second son.
Early in the morning on June 19, 2019, Plaintiff exited one of the rental unit's bedrooms onto the west deck carrying her younger son, who by then was four years old. When Plaintiff stepped off the deck, she twisted her ankle and fell onto the cobblestones in the yard, fracturing her ankle. She was taken by ambulance to the hospital and later underwent two surgeries and months of physical therapy.
B. The Pleadings
In August 2020, a little over a year after her injury, Plaintiff sued Defendant, asserting claims for negligence and premises liability. Plaintiff alleged that she attempted to "use a poorly constructed, substandard and non-code-compliant stair from a wooden deck to the pavement at the subject property when she lost her footing on the curved edge of the step," fell to the ground, and injured herself. Plaintiff further alleged that Defendant had a duty to inspect, maintain, and repair the leased premises, which he breached by failing to properly inspect, maintain, and repair the deck and stairs. Defendant denied liability and counterclaimed for damage to carpets in the rental unit.
C. The Bench Trial
After Defendant's motions for judgment on the pleadings and summary judgment were denied, the trial court held a two-day bench trial.
Plaintiff's first witness was a carpenter and construction contractor with experience building and remodeling wooden decks. After inspecting the west deck of the unit rented by Plaintiff, which the parties stipulated was built about 1972, this expert concluded that the deck had "extremely outlived its lifespan" and was "very dangerous." In particular, the expert noted, the girders or beams supporting the deck were severely rotted and collapsing under the deck's weight. In addition, the boards at the western corner of the deck, where Plaintiff fell, were rotted. As a consequence, the expert explained, the nails in the boards had nothing solid to "bite" into, and rather than staying flush against the boards, as the Building Code requires, the nail heads would pop up when someone walked on the deck and the boards flexed.
Plaintiff was the second witness. She testified that, when she moved into Defendant's rental unit, Defendant told her that she was responsible for keeping up the backyard, but said nothing about maintaining and repairing the decks. Plaintiff also testified that starting in 2018 she complained to Defendant about the condition of the decks. Indeed, on June 15, 2019, four days before her injury, Plaintiff sent Defendant a text informing him that the decks needed fixing or replacement and that the west deck in particular was dangerous. Defendant met with Plaintiff on the deck the next day and told her to have her husband or son pound any raised nails back into the deck because Defendant was leaving in a few days and could not do anything until he returned.
Despite the west deck's condition, Plaintiff testified that she regularly used it to exit the rental unit with her younger son. Ordinarily, she would go to the western edge of the deck, put her son down, and step on a railroad tie at the bottom of the deck before picking up her son. On June 19, 2019, a raised nail disrupted this routine. Around 6:30 a.m., Plaintiff went onto the deck with her youngest son, but she stepped on a nail with her right shoe, and the nail stuck into her shoe. Unable to move, Plaintiff had to "wiggle[] off the nail. Then [she] stepped onto the railroad tie." According to Plaintiff, less than two minutes elapsed between when the nail stuck into her foot and she stepped on the railroad tie. However, because of the nail she became frustrated and distracted, and rather than putting her son down before exiting the deck, she tried to step down with her son in her arms. When Plaintiff put her right foot on the railroad tie, she fell, twisting her foot sideways. Although her son was fine, Plaintiff was severely injured and her ankle fractured. Plaintiff acknowledged that the raised nail was not the "immediate cause" of her fall, but she testified that it contributed to the way that she stepped down on the railroad tie and therefore "the nail was a contributing factor" to her fall.
Plaintiff's final witness was a hostile one: Defendant. Defendant testified that he purchased the property in question in 1988, and he admitted that he never performed any maintenance on the west deck before Plaintiff was injured. Defendant asserted that, when he rented the unit, he told Plaintiff that she was responsible for maintaining the unit and grounds and in June 2019 he reiterated that it was her responsibility to take care of the nail heads on the west deck.
In his defense, Defendant presented three witnesses, including an expert and himself. The expert acknowledged that the deck was old but asserted that it was safe. Defendant also reiterated that, when he learned of the raised nail heads on the west deck, he told Plaintiff that she was responsible for taking care of them.
In closing argument, Plaintiff sought $4,000 for lost wages, approximately $30,000 for medical expenses, and $350,000 for pain, suffering, and permanent disability.
D. The Verdict
In December 2022, approximately two weeks after the trial, the trial court rendered a verdict. In the verdict, the court found in favor of Plaintiff on both of her claims and in favor of the Defendant on his cross-claim. On Plaintiff's claims, the court found Defendant 90 percent responsible for Plaintiff's injury and Plaintiff 10 percent responsible. The court also awarded Plaintiff over $37,000 in past damages, including medical expenses and lost wages. However, largely rejecting Plaintiff's request for $350,000 in pain and suffering damages, the court awarded only $25,000 in past noneconomic damages and $35,000 in future non-economic damages. Finally, the court awarded Defendant $1,583.50 on his counterclaim.
E. The Statement of Decision
After the verdict, Defendant requested a statement of decision. The trial court issued a final statement on February 3, 2023.
The trial court concluded that Defendant had a duty to repair the west deck. Crediting Plaintiff's testimony and rejecting Defendant's, the trial court found that Defendant never told Plaintiff that she was responsible for maintaining the decks. The court also found that Plaintiff told Defendant on several occasions in 2018 and 2019 that the west deck needed repair and, in particular, informed him on June 16, 2019 that the deck's protruding nail heads were dangerous.
In addition, the trial court concluded that Defendant was negligent in failing to keep the west deck in a reasonably safe condition. Crediting the testimony of Plaintiff's expert, the court found that the deck was in poor condition and that nail heads were protruding above its surface, creating an unreasonable risk of harm. The trial court also found that Defendant did not remedy the problem; indeed, the court observed, Defendant did not repair or maintain the west deck until after Plaintiff left the rental unit.
Finally, the trial court concluded that the poor condition of the deck caused Plaintiff's injury. The court found credible Plaintiff's testimony that she normally used extra caution in stepping down from the west deck, but on the day of her injury "her foot got caught on a raised nail as she walked across the west deck" and "her frustration about the nail head caused her to be less cautious and not place her son down before she stepped off the deck." Accordingly, the court found that the poor condition of the deck and the protruding nail head were substantial factors in causing Plaintiff to fall and injure her ankle. The court also found the requirements of proximate cause satisfied because the condition of the deck was "an antecedent or 'cause in fact' of Plaintiff's injury" and as a matter of public policy Defendant should be held legally responsible for the injury.
F. The Judgment
On February 7, 2023, the trial court entered final judgment awarding Plaintiff $85,844.21 in damages and $4,538.97 in costs, and Defendant $1,583.50 in damages. Defendant moved for a new trial, which the trial court denied in early April. On April 6, 2023, Defendant filed a timely notice of appeal.
II. Discussion
Defendant argues that the trial court's judgment should be reversed because he had no duty to maintain the west deck in Plaintiff's rental unit and because Plaintiff failed to prove that his failure to maintain the deck caused her injuries. We conclude that Defendant had a statutory duty to maintain the surface of the deck in good repair and that the trial court properly concluded that Defendant's failure to satisfy that duty caused Plaintiff's injuries.
A. Duty
On appeal, Defendant does not contend that there was any agreement that Plaintiff would maintain the decks or otherwise dispute the trial court's finding that he failed to tell Plaintiff that she was responsible for such maintenance. Instead, Defendant argues that he had no duty to maintain the deck as a matter of law or, alternatively, that any duty to maintain the decks did not extend to the raised nail heads that led to Plaintiff's injuries. These arguments are unpersuasive.
Defendant had a statutory obligation to maintain the decks in Plaintiff's rental units under Civil Code sections 1941 (Section 1941) and 1941.1 (Section 1941.1). Absent an agreement to the contrary, Section 1941 requires landlords to put residential properties into a condition fit for human occupation and, even more important here, to "repair all subsequent dilapidations therefore, which render it untenantable."
Section 1941 provides in full: "The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations therefore,
Section 1941.1 in turn identifies some requirements of "tenantability": In addition to waterproof roofs and exterior walls, plumbing and gas facilities, water, heating, electricity, and garbage facilities, tenantability requires "[f]loors, stairways, and railings maintained in good repair." (Civ. Code, § 1941.1, subd. (a)(8).)
Civil Code section 1941.1, subdivision (a) provides in full: "A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code: [¶] (1) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors. [¶] (2) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order. [¶] (3) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law. [¶] (4) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order. [¶] (5) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order. [¶] (6) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin. [¶] (7) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control. [¶] (8) Floors, stairways, and railings maintained in good repair. [¶] (9) A locking mail receptacle for each residential unit in a residential hotel, as required by Section 17958.3 of the Health and Safety Code."
The raised nail at issue in this case falls squarely within Section 1941.1's requirement that floors be maintained in good repair. One of the primary definitions of "floor" is "the surface or the platform of a structure on which to walk, work, or travel." (Webster's Third New Internat. Dict. (1993) p. 873, col. 2 [defining "floor" to mean which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine." (See also id. § 1929 ["The hirer of a thing must repair all deteriorations or injuries therefore occasioned by his want of ordinary care."].) "[t]he surface of a room on which one stands"]; see also American Heritage Dict. (5th ed. 206) p. 674, col. 1 [defining "floor" to mean "[t]he lower or supporting surface of a structure"].) The surface of a deck is a surface on which one walks. Consequently, the surface of a deck is naturally understood to be a floor, and Section 1941.1 is naturally interpreted to impose on lessors a duty to keep deck surfaces in good repair.
This conclusion is supported by the California Supreme Court's decision in Burdette v. Rollefson Const. Co. (1959) 52 Cal.2d 720. In that case, the plaintiff contended that she fell down a hill because an apartment building's owner had failed to put guard rails on the stairs, platform, and private sidewalk leading down from the building as required by a city ordinance on floors, roofs, and decks. (Id. at p. 724.) When the owner denied that the private sidewalk was a floor or a deck, the Supreme Court disagreed. Quoting from Webster's New International Dictionary, the Supreme Court observed that" '[f]loor' has been defined as 'The surface, or the platform, of a structure on which to walk, work, or travel.'" (Id. at p. 725.) Because the private sidewalk "was a platform of the building on which to walk," the Court concluded that the private sidewalk was a floor under the ordinance. (Ibid.) By that same logic, the surface of an outside deck or patio is a floor under Section 1941.1 because it is a platform on which to walk. The Oregon Supreme Court has similarly construed that state's Residential Landlord and Tenant Act, Or. Rev. Stat., § 91.770(1)(h). (Humbert v. Sellars (Or. 1985) 708 P.2d 344, 348 [holding an outdoor patio to be a "floor" under statute requiring that "[f]loors, walls, ceilings, stairways, and railings maintained in good repair"].) We therefore conclude that the surface of the west deck is a floor under Section 1941.1, and Defendant had a duty to keep it in good repair.
Defendant offers no persuasive alternative interpretation. Indeed, Defendant fails to offer any definition of "floor," much less one that would exclude the surface of a deck. Instead, Defendant asserts, without any explanation, that "[t]here is nothing in the statute suggesting the maintenance of outdoor patio decking was included within the meaning of 'floors' necessary for 'habitability.'" Such conclusory assertions are inadequate. "[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on the appellant to demonstrate . . . that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) To satisfy this burden," 'an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record,'" and therefore courts "may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusion he wants us to adopt.'" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)
Citing a 1959 California Supreme Court decision, Burks v. Blackman (1959) 52 Cal.2d 715, Defendant also contends that he cannot be held liable for conditions on property that he has given over to a tenant under the" 'rule of landlord nonliability.'" That is incorrect. Starting with Rowland v. Christian (1968) 69 Cal.2d 108 more than a half century ago, California courts have held that landlords "may be held liable under general tort principles for injuries resulting from defects in their premises if they have breached the applicable standard of care." (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1210; see id. at pp. 1196-1210; see also Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 992 ["In 1968, the California Supreme Court discarded the common law approach and determined that premises liability should be handled under ordinary negligence principles."].) Thus, while California courts examine whether a landlord has possession and control over leased property in determining the liability of residential landlords, they also "consider such factors as the importance of complying with habitability requirements" and "the fact that residential landlords have the primary responsibility to maintain properties." (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 780.) Consequently, California courts have long recognized that residential landlords have a duty to maintain outdoor railings, porches, and other aspects of rented properties in good repair. (Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 799-802 [holding landlord had duty to maintain iron railing on back stairway]; see also Terrell v. State Farm General Ins. Co. (2019) 40 Cal.App.5th 497, 505 [recognizing in dictum that landlord had duty to maintain porch of rental home in good repair].)
In addition to denying any duty to keep the west deck in good repair, Defendant argues that he had no duty to make it safe to exit Plaintiff's unit through the west deck because the danger of doing so was open and obvious. The trial court, however, did not find Defendant negligent because he failed to make the deck a safe way to exit the rental unit. It found Defendant negligent because he failed to maintain the deck as a whole and in particular allowed it to become so dilapidated that nail heads protruded from the deck's surface. Moreover, Defendant fails to explain how the danger of using the deck as an exit excuses him from his statutory duty to keep the surface of the deck in good repair.
Finally, Defendant argues that it was unforeseeable that Plaintiff would use the deck to exit the rental unit or that Plaintiff would be distracted by catching her shoe on a nail. Foreseeability, however, is "evaluated at a relatively broad level of generality." (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772.) In determining whether there is foreseeability-and, by extension, a duty of care-the task of the courts is" 'not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed ....'" (Ibid.) Here, Plaintiff suffered an ankle injury because she fell as a result of stepping on a raised nail. An injury from a fall is the kind of harm that a poorly maintained deck is likely to cause; consequently, even though the precise sequence of events here was unusual, the kind of harm Plaintiff suffered was foreseeable. (See Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594, 600 ["It is not necessary to prove that the very injury which occurred must have been foreseeable," only that "a reasonably prudent person would foresee that injuries of the same general type would be likely to happen"].)
We therefore conclude that Defendant had a duty to maintain the surface of the deck at issue in good repair.
B. Causation
In addition to denying that he had a duty to keep the west deck in good repair, Defendant argues that there was no evidence that his failure to satisfy this duty caused Plaintiff's injury. We disagree. The evidence presented at trial showed that Plaintiff would not have fractured her ankle "but-for" the dilapidated condition of the west deck, and no public policy consideration excuses Defendant from responsibility for allowing the deck to fall into such a condition.
Claims for both negligence and premises liability require "proximate cause resulting in injury." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Proximate cause has two aspects."' "One is cause in fact." '" (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352 (State Hospitals).) "The second aspect of proximate cause 'focuses on public policy considerations'" that" '" 'limit an actor's responsibility for the consequences of his conduct.'" [Citation.].'" (Id. at p. 353.) The cause-in-fact requirement is satisfied if the act in question was"' "a necessary antecedent of an event." '" (Id. at p. 352.) Moreover, unless there are concurrent independent causes, courts use the"' but for '" test-which asks "whether the injury would not have occurred but for the defendant's conduct" (Mitchell v. Gonzalez (1991) 54 Cal.3d 1041, 1049)-in making this determination. (State Hospitals, at p. 352 & fn. 12.)
At trial, Plaintiff presented substantial evidence of but-for causation. Plaintiff testified that she normally was cautious stepping down from the west deck: She would put her son on the ground, carefully step down, and pick up her son. However, on June 19, 2019, when Plaintiff went onto the west deck, she stepped on a nail, which stuck on her shoe, and in struggling to get loose, she became frustrated and distracted. As a result, rather than exercising her usual caution, Plaintiff exited the deck with her son in her arms, misstepped, and fell. Although her son was not hurt, Plaintiff twisted her foot sideways and fractured her ankle. This testimony-which the trial court expressly credited-provided more than ample basis for the trial court's finding that Plaintiff would not have injured her ankle but-for the raised nail on the west deck and therefore the deck's dilapidated condition was "an antecedent or 'cause in fact' of Plaintiff's injury."
Defendant asserts that Plaintiff's claims fail because the "sine qua non for premises liability slip-and-fall cases is the loss of bodily control due to the negligent condition of the property causing the fall" and, as there was a minute or two interval between Plaintiff stepping on the nail and falling, her "stepping on the nailhead was not the immediate cause of her fall." But Defendant fails to show that there is any requirement that a defendant's negligence directly or immediately cause injury. Defendant cites several decisions in slip-and-fall cases in which plaintiffs sought damages for injuries directly caused by their falls (see Lee v. Ashizawa (1964) 60 Cal.2d 862, 864; Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 383 (Getchell); McKenney v. Quality Foods (1957) 156 Cal.App.2d 349, 351-352; Oldenburg v. Sears, Roebuck &Co. (1957) 152 Cal.App.2d 733, 737), but none of these decisions suggests that in such cases a public policy prohibits plaintiffs from recovering unless there is direct or immediate causation. To the contrary, the Supreme Court recognized long ago that in negligence cases causation "may be indirect." (Berkovitz v. American River Gravel Co. (1923) 191 Cal. 195, 200 [rejecting instruction requiring that negligence be the "direct cause" of plaintiff's injuries because "the law required that it be the proximate cause, which may be indirect"]; see also Ash v. Mortenson (1944) 24 Cal.2d 654, 657 ["where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment"]; Anaya v. Superior Court (2000) 78 Cal.App.4th 971, 974-976 [concluding defendant who caused a car accident may be held liable for the death of a passenger killed when a helicopter airlifting her for treatment crashed].)
Consequently, a tortfeasor may be held liable for personal injuries indirectly caused by his or her negligence even if that negligence directly caused little or no injury. For example, in Churchman v. Sonoma County (1943) 59 Cal.App.2d 801, after pavement on a highway gave way, the plaintiff's car toppled into a ditch and tipped on its side. (Id. at pp. 804-805.) Although the plaintiff was not immediately injured, he fell and knocked himself unconscious in trying to extricate himself from the car. (Id. at p. 805.) When the plaintiff sued and a jury awarded damages for these injuries, the Court of Appeal held that the highway's defective condition proximately caused the damages. (Id. at pp. 805-809; see also Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1843-1844, 1848 [holding that driver may sue rental company for injuries suffered after his truck failed and he was hit by a car while standing on the shoulder of the road].) Accordingly, Defendant may be held liable for the injuries indirectly caused by his failure to maintain the west deck.
Defendant also asserts that his negligence must have been the "physical cause" of Plaintiff's injury, and he cannot be held liable for injuries arising out of mental or emotional states caused by the negligence. Defendant, however, fails to show that there is any public policy prohibiting recovery for injuries caused in part by a plaintiff's mental state. Although Defendant cites two cases in support of his assertion (see Getchell, supra, 203 Cal.App.4th 381; Holmes v. Moesser (1953) 120 Cal.App.2d 612), neither considered whether a plaintiff may recover damages for injuries caused in part by the plaintiff's mental state. Even more important, it is hornbook law that, when an actor's negligence causes fear or emotional disturbance, "[a]n act done in normal response to fear or emotional disturbance . . . is not a superseding cause" of injuries suffered because of the act. (Rest.2d Torts, § 444.)
Defendant argues as well that he cannot be held liable for injuries "due to someone thinking about the negligent act." The trial court, however, expressly stated that it "does not find that [Plaintiff] testified that she was 'thinking about the negligent act'" (italics added), and Defendant fails to offer any ground for challenging that statement.
While cases dealing with this scenario are rare, courts considering such scenarios repeatedly have held that a plaintiff may recover damages suffered as a result of fright, distress, or distraction caused by a defendant's negligence. (See Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 371 [permitting recovery for accident due to distraction caused by negligent loading of motorcycles in the back of a truck]; see also Kolar v. Bergo (Mont. 1996) 929 P.2d 867, 868, 870 [finding triable issue whether the distress from defendants' practical joke caused a car accident injuring plaintiff]; Hall v. Coble Dairies (N.C. 1951) 67 S.E.2d 63, 64, 68-69 [upholding claim that, as a result of a car accident caused by defendant, plaintiff walked onto the highway in a" 'dazed and addled'" condition and was hit by another car]; Russo v. Dinerstein (Conn. 1951) 83 A.2d 222, 224 [concluding that sudden fright from the opening of car door that led adult to lose control of a child did not preclude "the causal connection essential to the defendant's liability"]; Wisotsky v. Frankel (N.Y. Ct. App. 1917) 165 N.Y.S 243, 244 (Wisotksy) [concluding plaintiff may recover for injury resulting from "dazed mental condition" caused by defendant's negligence]; see generally Vance, Liability for Subsequent Injuries (1963) 42 Tex. L. Rev. 86, 95-96 ["The defendant's liability normally extends to the additional injury of the plaintiff from a stunned, dazed, or delirious condition, or other incapacity to think produced from the initial injuries."].)
For example, in Wisotsky v. Frankel, supra, 165 N.Y.S 243, a tenant sued her landlord for injuries suffered as a result of a "dazed mental condition" caused by the landlord's negligent maintenance. (Wisotksy, at p. 244.) When the tenant left her apartment and went into a hallway, plaster fell from the ceiling onto her head. (Ibid.)
The tenant became" 'confused'" and" 'frightened,'" ran forward, and fell down a flight of stairs. (Ibid.) Although the trial court dismissed the tenant's claim, the appellate court reinstated the claim, concluding that a jury could have found that the plaintiff's "dazed mental condition was the direct result of the blow on her head" and the chain of causation between the plaster falling on the plaintiff and the plaintiff falling down the stairs was unbroken. (Ibid.) Similarly, in this case, a reasonable trier of fact could have concluded that stepping on the raised nail on the west deck caused Plaintiff frustration and distraction, which led her to abandon her usual cautious approach in exiting the deck and injure her ankle.
This is not to say that Plaintiff bears no responsibility for not exercising her normal caution as a result of her frustration and distraction at stepping on the nail. She does. However, California has adopted comparative negligence, which "apportions liability in direct proportion to fault." (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 827.) As a consequence, Plaintiff's lack of care does not preclude recovery. Instead, it affects her proportion of the fault and, by extension, the amount of recovery. (See Gregory v. Cott (2014) 59 Cal.4th 996, 1001 [liability "is adjudicated under the rules of comparative negligence" where a plaintiff has "knowingly encountered a risk of injury caused by the defendant's breach"].) Assessing this, the trial court found Plaintiff 10 percent responsible for her injuries. Accordingly, Plaintiff's responsibility for her injuries has been incorporated in the trial court's award, and as Defendant has not challenged this finding, Plaintiff's frustration and distraction provides no basis for reversing the judgment.
III. Disposition
The judgment is affirmed. Plaintiff is awarded costs on appeal.
WE CONCUR: BAMATTRE-MANOUKIAN, ACTING P. J., DANNER, J.