Judge Kerry Bensinger, Case 21STCV32647 2023-02-06 Tentative Ruling

On September 2, 2021, Plaintiff Amanda Stewart (“Plaintiff”) filed this action against Defendant Target Corporation (“Defendant”), which arises from Plaintiff’s slip and fall at Defendant’s store. The operative pleading is the First Amended Complaint (“FAC”), which asserts causes of action for (1) negligence and premises liability.

On November 1, 2022, Defendant filed the instant Motion for Summary Judgment. Plaintiff opposed the Motion on January 23, 2023. Defendant filed a Reply to the Opposition on January 31, 2023.

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, subd. (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.” (Ibid.) “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).)

Defendant contends that it did not have reasonable notice of the condition that caused Plaintiff’s slip and fall with sufficient time to correct it, and summary judgment should be granted.

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.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition. (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Ortega, supra, 26 Cal.4th at p. 1207.) “Circumstantial evidence of a property owner’s failure to inspect the premises before an accident is sufficient to infer the risk existed long enough for the property owner, in the exercise of due care, to have discovered and removed it.” (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1293 [citing Ortega, supra, 26 Cal.4th at p. 1210-1211].) It is generally a question of fact for the jury as to whether, under all the circumstances, a defective condition existed long enough such that a reasonable person, exercising reasonable care, would have discovered it. (Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, 128-129.)

Defendant’s undisputed material facts establish the following. On June 20, 2021, at approximately 6:39:34 p.m. Defendant’s employee walked through the area where the subject incident would eventually occur, inspected that area, and there was no liquid on the floor. (Def. UMF Nos. 24-25.) At approximately, 6:57:42 p.m. a man can be seen dropping cans on the floor, and that man rolled those cans to the side with his foot. (Def. UMF Nos. 27-28.) The cans ended up being ginger beer cans that had leaked liquid in the subject area. (Def. UMF Nos. 12-16.) Plaintiff’s fall occurred at approximately 7:04:08 p.m., in food and beverage area of the store, in the freezer aisle next to the liquor and wine. (Def. UMF Nos. 11, 23; Plf. UMF No. 1.)

Approximately, six minutes and twenty-six seconds passed between the cans falling and Plaintiff’s slip and fall. Defendant contends that the time from the cans falling to Plaintiff’s slip and fall was insufficient amount of time to put Defendant on notice of the condition and correct it.

“A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

What is more, “[t]he owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

“A store 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.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, “the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise” and creating potentially hazardous conditions. (Ibid.) “However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.”

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Id. at 1206-1207.) Where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id., at 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 888 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) While failure to inspect is not sufficient, alone, to satisfy the plaintiff’s burden, the owner’s inspection practice is one of several factors that may be used to determine the length of time a condition existed. (Ortega, 26 Cal.4th at 1208.) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id., at 1205-1206.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

California Courts have determined that under some circumstances “the presence of a condition…for as long as ten or fifteen minutes would in all probability be held to justify submitting the cause to the jury” while under some circumstances, “‘a minute and a half’…is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.” (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 831–832.)

The Court finds that Defendant has failed to meet its burden and establish as a matter of law that six-minutes and twenty six seconds is an insufficient amount of time to put Defendant on notice of the condition and correct it.

Here, Defendant did not have set schedules to inspect the store for spills or hazards, and while its employee did inspect the subject area approximately twenty-five minutes before the subject incident, it is reasonable that a jury may find that Defendant failed to exercise reasonable care by failing to implement a schedule to inspect areas of the store where spills may be more likely, such as the food and beverage area of the store, which could have put Defendant on notice of the subject condition and could have avoided Plaintiff’s injury. (Def. UMF Nos. 24-25; Pl. UMF No. 17.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections in certain areas of a store where reasonably prudent. (Ortega, supra, 26 Cal.4th at p. 1205.) In addition, considering the circumstances of this case, a trier of fact could reasonably conclude, and is also in a better position to determine whether, six minutes and twenty-six seconds was sufficient time to put Defendant on notice of the subject condition.

Under the circumstances, it cannot be established as a matter of law that six minutes and twenty-six seconds was insufficient time to put Defendant on notice of the subject condition.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court