Judge Kerry Bensinger, Case 19STCV24562 2023-01-25 Tentative Ruling

On July 15, 2019, plaintiff Emma Chisholm (“Plaintiff”) filed this action against defendants Paramount Unified School District (“Defendant”) and Does 1 through 50, asserting a single cause of action for premises liability. This is a trip and fall case where Plaintiff alleges that she sustained injuries on August 31, 2018, due to a damaged portion of the sidewalk at Howard Tanner Elementary school.

The purpose of a motion for 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

“The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)

Government Code section 835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:¿

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿¿

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.) While those who own, possess, or control property are not insurers of the safety of their patrons, they generally have a duty to exercise reasonable and ordinary care in keeping the premises reasonably safe and in managing the property¿to¿avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1205 (Ortega); Annocki¿v. Peterson Enterprises, LLC¿(2014) 232¿Cal.App.4th 32, 37 (Annocki).) The existence and scope of duty are legal questions for the court. (Annocki, 232¿Cal.App.4th.¿at¿36.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it. (Ortega, 26 Cal.4th at 1203, 1206.) Once duty is established, the plaintiff must prove that the defendant breached this duty by failing to exercise ordinary care and the breach was a substantial factor in causing plaintiff’s harm. (Id. at 1205.)

“To establish ‘actual notice,’ it is not enough to show that the state employees had a general knowledge [of the dangerous condition]. There must be some evidence that the employees had knowledge of the particular dangerous condition in question.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 399.)

“[C]onstructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection…The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident [Citation.].” (Id. at p. 400.)

The term “dangerous condition” means a “condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.” (Gov. Code, § 830, subd. (a).)¿“A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care.¿Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.)¿“The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn. 5.) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)¿

Defendant moves the Court for an order granting summary judgment, or summary adjudication, as to Plaintiff’s premises liability on the grounds that the claim fails as matter of law because Plaintiff does not have and cannot present competent evidence (1) that an actionable dangerous condition of public property caused her alleged trip-and-fall and injuries; and (2) that Defendant had actual or constructive notice of any alleged dangerous condition.

Here, Plaintiff properly authenticated the lodged video in Exhibit E. The video was shown to Plaintiff during her deposition. In her deposition, Plaintiff set forth in sworn testimony that she was familiar with the video and that she understood her son took the video. Plaintiff also testified that once she saw the video, she saw that the concrete was uneven, that she did not trip over her own feet on the day of her fall, that upon seeing the video, she knew that was the area that she fell.

Here, the Court finds insufficient evidence to prove that Defendant had actual notice of the alleged defective condition; however there is sufficient evidence to prove Defendant had constructive notice. As to actual notice, there is no evidence Defendant actually knew of the defective condition prior to the incident.

With respect to constructive notice, there is sufficient evidence to raise a triable issue of material fact. There is sufficient circumstantial evidence to reasonably infer that the dangerous condition was in place prior to Plaintiff’s injury for a sufficient period of time. Here, Plaintiff’s son took a video shortly following Plaintiff’s fall. After reviewing the video, the Court finds that there is an identifiable and sizeable crack, which Plaintiff claims is the dangerous condition. The Court finds that the crack in the sidewalk is sufficiently significant to raise a triable issue of material fact on the issue whether the condition creates a substantial risk. This alleged defect is not minor, trivial, or insignificant which would allow the Court to find as a matter of law that Defendant was not on constructive notice. As shown by the video, the condition of the property created a substantial risk of injury. There is a triable issue of material fact whether Defendant had constructive notice of the defective condition.

First, Defendant argues that Plaintiff cannot prove the alleged dangerous condition caused her to trip and fall because the undisputed facts show that Plaintiff’s claims are based on speculation and conjecture.

In opposition, Plaintiff argues that Defendant’s “motion is premised on the district [sic] claim that [Plaintiff] is not aware of where she fell.” (Oppo. p. 5:26-27.) Plaintiff identifies the location of the fall to “the area of trees whose roots over time, displaced the sidewalk.” (Plaintiff’s Undisputed Material Facts “PUMF” ¶ 11.)

The Court finds that there is a triable issue of material fact regarding Defendant’s negligence. Plaintiff provides sufficient evidence to show that Defendant had a duty to keep the sidewalk safe, it breached that duty, the defective condition caused Plaintiff’s injuries, and Plaintiff suffered damages. Although Plaintiff may not introduce evidence of Defendant’s remedial measures in fixing the sidewalk to prove negligence (Evid. Code, § 1151), she may use it to show that Defendant had a duty to take safety measures. (See Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555.)

As discussed above, if Defendant had constructive notice of the dangerous condition, then Defendant may have breached its duty by failing to repair that condition prior to Plaintiff’s fall.

As to causation, the Court finds that Defendant’s cited cases are distinguishable from the instant case. Defendant’s cases show what courts have deemed as “speculative” evidence, where the plaintiffs could not point to a specific defective condition but only surmised that there was a “water-or-wax like substance,” or a “slippery substance.” (Mot. p. 14:1-25.) However, unlike those cases, here, Plaintiff points to a specific condition on the sidewalk, as referenced in Exhibit E. (Notice of Lodging, Exhib. E.) Even if Plaintiff were unsure of the cause of her fall at the time of the incident, she identifies with specificity the location of the fall, as depicted in the video, which distinguishes her case from Defendant’s cited cases. The Court finds Plaintiff’s evidence to support a showing of causation and sufficient to raise a triable issue of material fact.

The parties do not dispute that Plaintiff suffered injuries or damages because of her fall. Since there sufficient evidence to show that Defendant had a duty, that Defendant breached said duty, that the dangerous condition caused Plaintiff’s injuries, and that Plaintiff suffered damages, there are issues of disputed material fact as to Plaintiff’s claim for premises liability under Government Code section 835.

In light of the foregoing, the Court DENIES Defendant’s Motion for Summary Judgment.

Hon. Kerry Bensinger

Judge of the Superior Court