Opinion
B154193.
7-21-2003
VIRGINIA SMITH, Plaintiff and Appellant, v. BEST AMERICAN HOSPITALITY et al., Defendants and Respondents.
Benedon & Serlin, and Gerald M. Serlin and Douglas G. Benedon; Nordstrom, Steele, Nicolette, Blythe & Jefferson, and Russell Nordstrom and Lucia Nordstrom for Plaintiff and Appellant. LeBoeuf, Lamb, Greene & MacRae, and Dean Hansell, Sharon C. Corda, and Devin A. McRae for Defendants and Respondents.
Plaintiff and appellant Virginia Smith appeals from the summary judgment entered against her and in favor of defendant and respondent Best American Hospitality dba Churchs Chicken, on appellants complaint for damages in this premises liability action. Appellant was injured when she fell down a flight of stairs. Appellant contends
there is a triable issue of material fact as to causation. After review, we affirm the judgment.
STANDARD OF REVIEW
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any fact and that the moving party is entitled to a judgment as a matter of law. . . ." (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A defendant meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. Once the defendant has met that burden, the burden is on the plaintiff to show a triable issue of fact exists. (Code Civ. Proc., § 437c, subd. (o).)
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, supra, 25 Cal.4th at p. 850.) Where all of the evidence presented by the plaintiff shows the existence of an element of the offense only as likely or even less likely than the nonexistence of that element, the court must grant the defendants motion for summary judgment because a reasonable trier of fact could not find for the plaintiff in such a case. (Id. at p. 857.) Even where the element at issue can be proved by inferences, the inference of the existence of the element must be more likely than the inference of its nonexistence. An inference is reasonable if and only if it implies the existence of an element more likely than the nonexistence of that element. (Ibid. )
In reviewing an order granting summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 766 (Saelzler).) We view the evidence and all inferences reasonably drawn therefrom in the light most favorable to the party opposing the motion. (Aguilar, supra , 25 Cal.4th at p. 843; Saelzler, supra, at p. 768.)
FACTUAL AND PROCEDURAL BACKGROUND
Churchs Chicken (the restaurant) is located at 1500 North La Brea Avenue, in Inglewood. The front door of the restaurant is elevated from the sidewalk. Immediately in front of that door is a landing. The landing is accessed from the parking lot by a ramp on one side, and by four steps of unknown width on the other. When facing the door with ones back to the street, the steps are on the left side and the ramp is on the right side of the landing.
These facts are gleaned from the photographs and excerpts of appellants deposition submitted in support of, and opposition to, the motion.
It was a clear and sunny day when appellant parked in the restaurants parking lot at some time between 9 and 9:30 a.m. on December 21, 1999, and walked up the ramp leading to the restaurant door. She had never been to the restaurant before, and did not notice the steps opposite the ramp on the other side of the landing. When appellant tried to open the door to the restaurant, she discovered it was locked. Although glare on the window made it difficult to see inside the restaurant, appellant spent about 10 minutes looking through the window and trying to get the attention of one of the employees inside. Trying to see more clearly into the restaurant, appellant took a few steps to her left. It was at that time, while she was still looking in the window, that appellant felt her foot step onto nothing before she fell. Appellant could not recall trying to grab anything when she fell, but surmised that she "must have," because her wrists were injured. During the entire time she had been looking through the window into the restaurant, appellant did not notice the steps to her left. The first time she became aware of them was when she was lying on the ground.
Appellant testified: "Probably I did try to catch myself or something because I was - had bruises all over my wrists and arms and elbows."
Appellant filed the instant action for general negligence and premises liability on September 26, 2000. The gravamen of the complaint is that respondents "so negligently and carelessly owned, entrusted, maintained, controlled and operated premises as to cause [appellant] to fall and injure herself. [Respondents] failed to keep their premises in a safe condition in violation of this States safety codes and in a unreasonably dangerous condition due to [respondents] negligence." On July 20, 2001, respondents moved for summary judgment on the grounds that appellant could not show the requisite causation because the "uncontroverted facts here show that [appellant] was walking without looking in the direction where she was placing her feet . . . . There is no reasonable basis on which to conclude that the cause of [appellants] injury was due to any breach of duty by defendants, and the purpose of the California building and/or safety codes concerning stairways is not to protect those who are not looking in the direction that they are walking."
In opposition to the motion, appellant argued: "The mere fact that [appellant] was not looking where she was going at the time of the accident does not effectively preclude her from pursuing a claim based on [respondents] failure to warn of a dangerous condition."
In the trial court and on appeal, respondents relied on Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 50 P.2d 801 (Blodgett), for the proposition that, even assuming a breach of duty by the landowner, a showing that the plaintiffs inattentiveness was the cause of his or her injury precludes the plaintiffs right to recover in a negligence action. (Id. at p. 513.) In that case, the plaintiff was looking in a shop window, not at the pavement or where she was going, when she walked around a corner and fell into a stairway. The Supreme Court affirmed the judgment of nonsuit in favor of the defendant, reasoning that a property owner must give warning of latent or concealed perils, but was not liable for injury resulting from a peril which was obvious or could have been observed in the exercise of reasonable care. (Id. at p. 512.) The Supreme Court also found the lack of a handrail in violation of a city ordinance did not preclude the trial court from finding the plaintiff was guilty of contributory negligence-an absolute bar at the time-and that her lack of due caution precluded her right to recover. (Id. at p. 513.)
Both in the trial court and on appeal, appellant has argued the holding in Blodgett was based upon the doctrine of contributory negligence, which was disapproved by our Supreme Court in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal. Rptr. 97, 443 P.2d 561, and Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 828, 119 Cal. Rptr. 858, 532 P.2d 1226. Blodgett stands for the proposition, which remains the law today, that the owner of property has a duty to keep his premises in a reasonably safe condition and give warning of latent or concealed perils, but is not required to warn of obvious dangers. Rather, a property owner is "entitled to assume that any invitees will 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, 266 Cal. Rptr. 749 [tree at end of ski run is an obvious danger as to which property owner had no duty to warn]; see also 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 930, p. 301.) Thus, the cited portion in Blodgett is about duty, an issue not present here. Blodgetts discussion of causation is limited to the absence of handrails, which the court concluded was not a cause of the accident. (See discussion in text, post.)
The trial court was unconvinced. It granted the motion, finding no triable issue of material fact as to the element of causation vis-a-vis the general negligence and premises liability causes of action. As to the claim of negligence per se arising from the fact that there was no handrail, the trial court held the failure to plead the statutory regulation upon which this theory of liability was based was fatal to the claim. The trial court observed: "The bottom line is it was [appellants] inattentiveness. That is the sole cause of her injury in the accident period. [P] . . . Obviously its not the fault of this location that she fell. She didnt look." In its written order, the trial court stated: "There is no evidence that [respondents] acts caused any injury to [appellant], and any breach of duty by defendants is therefore irrelevant."
Appellant filed a timely notice of appeal.
DISCUSSION
Causation
Appellant contends the trial court erred in finding no triable issue of material fact as to causation. She argues the evidence of her expert witness, Jerome N. Borowick, was sufficient to establish a triable issue of material fact as to whether appellants injuries were caused by respondents failure to paint the steps in a way that made them more apparent to invitees, and/or by respondents "negligence per se" in failing to install a handrail on both sides of the steps as, she argues, is required by Title 8 California Administrative Code section 3214 ( § 3214). We disagree.
In pertinent part, § 3214(a) provides: "Stairways shall have handrails or stair rails on each side . . . ." Subdivision (d) of section 3214 provides: "The handrail shall be designed to provide a grasping surface to avoid the person using it from falling. . . ." (See also 2001 Cal. Uniform Building Code, § 1003.3.3.6 [similar language to § 3214].)
To prevail on an action in negligence, a plaintiff must show that the defendants owed her a legal duty, that they breached that duty, and that the breach was a proximate or legal cause of her injuries. (Saelzler, supra, 25 Cal.4th at p. 767.) Upon a showing that one or more elements of the cause of action cannot be established, the burden shifts to the plaintiff to show a triable issue of fact. Such showing must be supported by specific facts, not mere allegations or speculative arguments. (Id. at pp. 767-768.) Summary judgment is appropriate where the defendant shows that the plaintiff cannot reasonably expect to establish a prima facie case of causation. (Id. at p. 768.) "A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. [Citation.]" (Id. at pp. 775-776, italics omitted.)
Here, appellant argues that expert witness Borowicks declaration is sufficient to establish a prima facie case of causation. Appellant is incorrect. An engineer, Borowick opined that, based upon his inspection of the site and review of appellants deposition, "because the forward edges of the steps of the left of the doorway were not marked and visually blended with each other, [appellant] assumed a ramp was also on that side of the doorway." This opinion is entirely speculative and without foundation. There was no evidence appellant assumed there was a ramp on the other side of the landing. She did not testify so at her deposition. On the contrary, appellant testified she did not notice the steps opposite the ramp. In response to defense counsels inquiry as to whether anything blocked her view of the steps, appellant testified: "The only way I can answer that is to say this: There was no indication that there were steps there. There was nothing to alert me to the steps being there." This testimony falls short of evidence that appellant "assumed" a ramp was on the other side of the landing.
In the trial court, respondents objected to this evidence on the grounds that it misstated the facts and assumed facts not in evidence. It does not appear that the trial court ruled on this objection, but we find it well taken.
Equally speculative is Borowicks opinion that the "uniform coloration of the gray cement and the 3/8 in./ft down slope, appear to be a ramp similar to the ramp leading up to the doorway. This condition leads a pedestrian to unsafely perceive the steps as a ramp and therefore to misstep. [P] . . . [P] Colorful strips or paint could have been easily and inexpensively placed on the noses of the steps to make them visible." (Italics added.) First, Borowick was an engineer. There was no evidence that he was a human factors expert or otherwise qualified to express an opinion on what a person might "perceive." Second, Borowicks opinion that the gray steps actually appeared to be a ramp but colored steps would have alerted appellant is irrelevant. As we have observed, there was no evidence that the steps appeared to appellant to be a ramp, only that appellant did not notice the steps. A failure to notice the steps at all is not the equivalent of misidentifying them as a ramp; nor did appellant testify that her position was such that brightly colored steps would have attracted her attention.
Nor are we persuaded by the argument that respondents should be presumed negligent pursuant to Evidence Code section 669 (section 669) for their failure to put handrails on each side of the stairs as required by section 3214. In pertinent part, section 669 provides: "(a) The failure of a person to exercise due care is presumed if: [P] (1) He violated a statute, ordinance, or regulation of a public entity; [P] (2) The violation proximately caused death or injury to person or property; [P] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [P] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Italics added.) Thus, the issue of causation is as much an element of a negligence per se claim as of any other negligence claim. Accordingly, even assuming respondents violated section 3214, subdivision (a), to survive summary judgment appellant must still establish a prima facie case showing that this violation caused her injuries. She has failed to do so.
The following colloquy occurred at appellants deposition: "[Q.] Do you recall when you fell in this accident, did you try to reach out and grab anything? [P] A. As I recall, there was nothing to grab. It was out - I was out in space. [P] Q. Do you recall trying to grab something? [P] A. I must have because my wrists were injured. Probably I did try to catch myself or something because I was - had bruises all over my wrists and arms and elbows." Inasmuch as appellant is not even sure that she tried to grab a handrail to keep from falling, it is entirely speculative as to whether the absence of a hand rail caused her injuries. Borowicks opinion that a handrail could have "easily and inexpensively been placed on the right side of the ramp," is thus irrelevant because there is no evidence that such a handrail would have prevented appellants injury. (See Blodgett, supra, at p. 513 [" The evidence shows that the lack of the handrail was neither the proximate nor any cause of plaintiffs fall. Any violation of the ordinance by the defendant would, therefore, be immaterial. . . . "].)
Appellant having failed to establish a prima facie case of causation on any theory of liability, summary judgment was properly entered against her.
DISPOSITION
The judgment is affirmed. Respondents shall receive their costs on appeal.
We concur: COOPER, P.J., BOLAND, J.