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Thomas v. Isaacs

California Court of Appeals, Second District, Seventh Division
Apr 29, 2009
No. B206685 (Cal. Ct. App. Apr. 29, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. SC092843, John P. Shook, Judge.

Law Offices of Don Iwuchuku and Donald Iwuchuku for Plaintiff and Appellant.

Mark R. Weiner & Associates and Kathryn Albarian for Defendants and Respondents.


JACKSON, J.

INTRODUCTION

Plaintiff Shelley Thomas appeals from a summary judgment in favor of defendants Ralph Isaacs and Ruth Isaacs. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was a tenant in an apartment building (the property) owned by defendants Ralph Isaacs and his wife, Ruth Isaacs, located at 3942 Stevely Avenue in Los Angeles. Plaintiff had lived there approximately five years. Plaintiff slipped and fell on a stairway on the property on October 14, 2006. Around midday, she had gone to her neighbor’s apartment on the second floor. She had no trouble ascending the stairs and did not notice that they were wet. As plaintiff was holding the handrail on her left and descending the stairs a short time later, she slipped on the second or third step from the top. She did not recall seeing water on the stairs but assumes she slipped on water because her left arm and dress were wet when she reached the landing.

Plaintiff filed a complaint for damages against defendants. She alleged that she was injured at the property on October 14, 2006 when she slipped and fell on a puddle of water that percolated on the stairs from a leaking roof. Plaintiff alleged that defendants recklessly and with gross negligence maintained, managed and operated the property and likewise, recklessly and with gross negligence trained and supervised their agents, managers and other persons with responsibilities related to the property, proximately causing her to fall and injure herself. She alleged permanent injuries to her body and her mind, including emotional distress. Plaintiff sought compensatory, economic and special damages as well as non-economic damages, including recovery for emotional distress.

Defendants moved for summary judgment on the grounds the stairs did not constitute a dangerous condition and defendants did not have prior actual or constructive notice of any unreasonable risk presented by the stairs. In his supporting declaration, defendants’ slip and fall expert, Michael Stapleford (Stapleford), stated that he performed a series of slip resistance index tests on the second and third stair treads where plaintiff allegedly slipped. He used an English XL Variable Incidence Tribometer (VIT) in accordance with American Society of Testing Materials (ASTM) standard 1679-04. In Stapleford’s opinion, “[t]he slip resistance tests indicated that the stair treads tested have a high enough slip resistance index to insure that walkers with the highest traction demand will have a 0% chance of a slip while descending,” and therefore, the stair treads are “above industry standards for a safe walking surface.” He opined further that the “dimensions of the stairs and the height of the two handrails... comply with applicable building codes and together with the slip resistance reported above provide a safe means of descending the stairs.”

In opposition, plaintiff presented the declaration of an eyewitness, Sandra Scott (Scott), that the stairs where plaintiff slipped and fell were covered by a puddle of dirty water and were slippery at the time of the fall. According to the declaration, the first rain of the year had occurred the night before and the morning of the day of plaintiff’s accident. Scott declared that, for a few years prior to the incident, during rainy weather, water and other debris from a leaky pipe connected to the roof would make a puddle on the stairs, and defendants failed to clean up the stairs during and after rains. In their respective declarations in support of the summary judgment motion, defendants and their on-site property manager, Phillip Moore, reported that, prior to plaintiff’s accident, no one had ever complained that the stairs in question were slippery at all, and that they were not aware that there was water on the stairs.

Plaintiff also presented the declaration of Herb Summers (Summers), her slip and fall expert. Summers stated that the stairway surface was “coated with what appear[ed] to be ‘Desert Brand Classic Waterproof Sealer’” which was “not mixed with sand or ‘silica granules’ as recommended by the manufacturers of such products to ensure a more slip resistant surface.” Summers quoted a warning on the sealer as follows: “Possible Slipperiness - Desert Brand Classic Sealer, like any good finish, reduces the porosity of the surface being sealed. BE AWARE that oil, water, mud or other materials on a sealed walkway or stair tread can make the surface slippery and therefore potentially dangerous. Good housekeeping and maintenance are important - good drainage is imperative.” Summers opined that “[w]ithout knowing the content of the puddle of liquid that had percolated around the said stair..., one could not conclude that the stairs were not slippery on the date of the slip and fall especially in light of the manufacturer’s warning” previously quoted. Summers observed the purported leaky pipe and noted that the pipe and roof had been repaired.

The trial court granted defendants’ summary judgment motion on the basis that plaintiff failed to raise a triable issue of material fact as to the existence of a dangerous condition. The court ruled that plaintiff failed to present admissible evidence that defendants’ expert used a disapproved ASTM testing method for his determination of the sufficiency of the coefficient of friction on the stairs; the court denied plaintiff’s request for judicial notice of internet pages purporting to show the disapproval for lack of a proper evidentiary foundation. The court overruled plaintiff’s evidentiary objections to the declaration of defendants’ expert.

Plaintiff moved for reconsideration, based upon the ASTM standard and testing method issue, and submitted a supplemental declaration from Summers. He stated that “[t]he ASTM standard F-1679, an English-XL tester, has been withdrawn by ASTM since September 20, 2006. As it has been withdrawn, using it as the primary method to evaluate the traction of the surface may not be valid.” He attached copies of internet pages which stated that the standard had been withdrawn as of that date. Summers restated his “opinion that the stairs at issue may have been slippery on the date of this incident.” His opinion was based upon (1) his determination there was no sand or silica granules mixed with the waterproof sealer as recommended by the manufacturer of “Desert Brand Classic Waterproof Sealer,” which determination he made by visual inspection of the surface of the stairway and rubbing his hand over the surface, and (2) the manufacturer of “Desert Brand Classic Waterproof Sealer” warned that oil, water, mud or other materials on a sealed walkway or stair tread can make the surface slippery and, therefore, potentially dangerous. At the close of a hearing on plaintiff’s motion, after reviewing exhibits and other documents presented by plaintiff in support of her motion, as well as defendants’ opposition thereto, the trial court determined that its ruling would remain unchanged.

DISCUSSION

We review the trial court’s grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether material facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) When a defendant moves for summary judgment, the defendant has the “burden of showing that a cause of action has no merit,” and can meet that burden by showing “that one or more elements of the cause of action... cannot be established” by the plaintiff. (Code Civ. Proc., § 437c, subd. (p)(2).) To make such a showing, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Guz, supra, at pp. 373-374 (conc. opn. of Chin, J.).) To present sufficient evidence to prove a negative, however, is often an “impossibly high” burden of proof. (Guz, supra, at p. 373 (conc. opn. of Chin, J.).) All the defendant need do, however, is present evidence that “the plaintiff does not possess, and cannot reasonably obtain,” evidence needed to establish a single element of the cause of action. (Aguilar, supra, at p. 854.)

In a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, “the 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.’ [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) Only if the defendant’s initial burden has been met does the burden shift to the plaintiff to demonstrate, by reference to specific facts, not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)

The liability of property owners for injuries sustained by individuals on their premises is generally governed by ordinary negligence principles, as set forth in Civil Code section 1714, subdivision (a). (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The controlling question is whether the property owner has acted as a reasonable person in the management of his or her property in view of the probability of injury to others. (Rowland, supra, at p. 119.)

Civil Code section 1714, subdivision (a), provides in pertinent part, “Everyone is responsible, not only for the result of his or her willful acts, but also 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 by want of ordinary care, brought the injury upon himself or herself.”

A property owner is negligent if he or she fails to use reasonable care to discover any unsafe or dangerous conditions on the property and to repair, replace or give adequate warnings of anything that could reasonably be expected to harm others. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 [property owners must maintain land in reasonably safe condition]; see Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1590 [“An owner of property is not an insurer of safety, but must use reasonable care to keep the premises in a reasonably safe condition and must give warning of latent or concealed perils.”].) Whether the property owner has acted as a reasonable person in the management of the property depends on a number of factors, including the likelihood of injury and the probable seriousness of such injury. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371-372.)

In this case, defendants, the owners of the apartment complex in which plaintiff lived, moved for summary judgment on the ground the stairs on which plaintiff slipped and fell did not constitute an unreasonably dangerous condition (that is, that they acted as reasonable persons in maintaining the apartment complex). In support of the motion, they introduced the declaration of an engineering expert who opined, based on his testing, the stair treads had a high enough slip resistance index to ensure that walkers with the highest traction demand would have no chance of slipping while descending the stairs. The expert also opined the stairway surface was above industry standards for a safe walking surface. Plaintiff’s expert challenged aspects of the defense expert’s methodology but ultimately did not contradict the defendants’ expert’s coefficient of friction test results or his opinion regarding industry standards.

Defendants also moved for summary judgment on the ground they had no notice of an unreasonably dangerous condition on the stairs. The trial court did not base its grant of summary judgment on that ground.

The testimony from defendants’ expert, if left unrebutted at trial, would support judgment in defendants’ favor. In regard to the summary judgment motion, if the burden of going forward to demonstrate a triable issue of fact shifted to plaintiff, we agree summary judgment would be warranted. However, nothing in the defense expert’s declaration conclusively negates the element of a “dangerous condition.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853; see also Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 373 (conc. opn. of Chin, J.).) Nor does the defense expert’s declaration or any other evidence in defendants’ moving papers demonstrate plaintiff did not possess or could not reasonably obtain expert witness testimony establishing that the condition of the stairs was dangerous or that defendants’ conduct with respect to maintaining the stairs in a safe condition was unreasonable. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003; Aguilar, supra, 25 Cal.4th at pp. 849, 855.)

As a result, defendants failed to meet their initial burden and shift to plaintiff the obligation to demonstrate a triable issue of material fact as to the existence of a dangerous condition sufficient to support a breach of duty of care owed by defendants to plaintiff. (See, e.g., Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 373 [reversing summary judgment where “evidence [did] not conclusively establish that no rational inference of negligence could be drawn under the circumstances” of the case].) Summary judgment was therefore improper. (Code Civ. Proc., § 437c, subd. (c).) Having resolved the appeal on the foregoing grounds, we need not address other issues raised by the parties.

DISPOSITION

The judgment is reversed. Plaintiff is to recover costs on appeal.

We concur: PERLUSS, P. J., ZELON, J.


Summaries of

Thomas v. Isaacs

California Court of Appeals, Second District, Seventh Division
Apr 29, 2009
No. B206685 (Cal. Ct. App. Apr. 29, 2009)
Case details for

Thomas v. Isaacs

Case Details

Full title:SHELLEY THOMAS, Plaintiff and Appellant, v. RALPH ISAACS et al.…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Apr 29, 2009

Citations

No. B206685 (Cal. Ct. App. Apr. 29, 2009)