Judge Loren G. Freestone, Case Number: 37-2021-00050657-CU-PO-CTL, Date: 2024-05-10 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2021-00050657-CU-PO-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 09, 2024

05/10/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00050657-CU-PO-CTL PAGGETT VS DENCO FAMILY INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant New Caney Inc.'s motion for summary judgment as to the complaint filed by Plaintiff Schmika Paggett is DENIED.

Preliminary Matters Paggett's evidentiary objections (ROA #77): Objection no. 1 is overruled and objection no. 2 is sustained.

Dangerous Condition New Caney moves for summary judgment on the ground that Paggett 'has no evidence to show that there was any unsafe condition present on the floor at the time that she fell.' It relies on Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729.

In Buehler, the plaintiff allegedly slipped and fell 'on an unknown substance or an improperly waxed floor' at the defendant's supermarket. (Buehler, supra, 224 Cal.App.3d at p. 732.) However, at her deposition, the plaintiff testified that she 'just slipped.' (Ibid.) The plaintiff did not notice any liquid or solid debris on the floor either before or after she fell. (Ibid.) And when asked at her deposition, 'To this day, do you know what caused you to fall in that aisle as you were talking toward the checkstand?' the plaintiff replied 'No, sir, no, sir, I do not. I do not.' (Id. at p. 733.) An eyewitness who was standing five feet from the plaintiff also testified that she did not see anything on the floor, that the floor was not slippery, and that she did not know why plaintiff fell. (Id. at p. 732.) Thus, based on the evidence, all the plaintiff could argue is that she lost her balance 'for some unknown reason' and that mere 'conjecture' and 'speculation' as to what caused her fall could not defeat the defendant's motion for summary judgment. (Id. at p. 734.) New Caney argues that this case is analogous to Buehler because Paggett testified that she did not see 'liquid' on the floor and could not 'say really what it was on the floor.' However, Paggett also repeatedly testified that after she fell she noticed that the floor 'was slippery and wet.' She testified that parts of the ground were dry, but that it was wet 'outside the door and in the stall.' Although she did not 'know exactly what type of solution' was on the ground, she confirmed that 'it was wet' and 'it was slippery.' (See Roeland v. Geratic Enterprises, Inc. (1960) 187 Cal.App.2d 280, Calendar No.: Event ID: TENTATIVE RULINGS

3075917 41 CASE NUMBER: CASE TITLE: PAGGETT VS DENCO FAMILY INC [IMAGED] 37-2021-00050657-CU-PO-CTL 282 [triable issue where the plaintiff testified that the floor was 'wet or damp,' 'very smooth and slippery,' and 'real slippery'].) New Caney points to the following exchange to discount Paggett's testimony that the floor was wet: 'Q. But just to be clear, you're testifying as you got up it was still pretty wet but you didn't see any liquid on the ground. You were just making an assumption that it was wet; is that correct? A. Yes, that's correct.' Paggett's testimony is therefore somewhat inconsistent as to whether she affirmatively noticed that the floor was wet, or merely assumed that it was wet. Internally inconsistent deposition testimony is generally not sufficient to raise a triable issue of fact. (See Davis v. Foster Wheeler Energy Corp. (2012) 205 Cal.App.4th 731, 734–736.) However, Paggett's deposition testimony does not prevent her from relying on other competent evidence to demonstrate a triable issue of fact. (See Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524–1525.) If there is circumstantial evidence giving rise to a reasonable inference that the floor was wet, the motion must be denied. (See Kaney v. Custance (2022) 74 Cal.App.5th 201, 220.) Here, there is such evidence.

First, New Caney's person most qualified on cleaning policies/practices/procedures for the Denny's at issue (Bahader Kang) testified that the restaurant exclusively uses a cleaning solution called Ecolab Floor Cleaner that is mixed with water and then applied to the floor with a mop.

First, Paggett testified that she spoke with the person in charge of the restaurant after she fell, and that he stated 'I'm sorry. We just mopped, like, five minutes ago.' Third, photographs produced by New Caney show dark smudges/smears on the bathroom floor in the shape of shoe prints.

Thus, unlike Buehler, Paggett is not relying on mere 'conjecture' and 'speculation.' Rather, there is competent evidence sufficient to give rise to a reasonable inference that the floor Paggett slipped on was still wet from when it was mopped five minutes prior with a mixture of water and Ecolab floor cleaner. As Paggett also testified that there were no caution signs, in violation of New Caney's policies, there is a triable issue as to whether the wet floor constituted a dangerous condition. (See Roeland, supra, 187 Cal.App.2d at p. 282 ['whether or not a slippery floor is a dangerous condition is a question of fact'].) Causation New Caney also moves for summary judgment on the ground that Paggett 'fell as a result of that unsafe condition.' 'Causation is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.' (Kaney, supra, 74 Cal.App.5th at p. 212.) New Caney relies on one of Paggett's medical records from the day of the incident wherein the Scripps emergency physician noted that it 'sounds like [Paggett] turned and somehow got caught up in her dress and she fell on her right side.' As set forth above, Paggett's objection to this latter piece of evidence is sustained and therefore New Caney has not met its initial burden in moving for summary judgment on this ground.

Paggett also declares that she 'did not tell anyone at Scripps Mercy Hospital, or anywhere else, that [she] fell at the Denny's restroom because [she] 'somehow got caught up' in [her] dress.' Indeed, the top Calendar No.: Event ID: TENTATIVE RULINGS

3075917 41 CASE NUMBER: CASE TITLE: PAGGETT VS DENCO FAMILY INC [IMAGED] 37-2021-00050657-CU-PO-CTL of the referenced medical record states: 'Chief Complaint – Patient presents with – Fall - pt slipped on water landing on left side.' Paggett testified that her dress that day was knee-length. She also declares that the dress 'was not long enough for [her] to get 'caught up' and fall.' As noted above, Paggett testified that there were no caution/wet floor signs in the bathroom. As a result, she testified that she 'didn't know to pay attention.' And as noted above, after the fall there were black smears on the floor from a shoe. This would indicate that Paggett slipped on the floor itself.

New Caney argues that there is no expert testimony that the mopped floor was slippery. However, it is within common knowledge that a wet and soapy floor is slippery. (See Roeland, supra, 187 Cal.App.2d at p. 282; see also Jorgensen v. Beach 'N' Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 163 ['The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don't need a weatherman to know which way the wind blows''].) Based on the above, a jury could reasonably conclude that Paggett fell because the floor was wet, slippery, and lacked any caution signs, and not because of her knee-length dress.

Conclusion There are triable issues as to whether the bathroom floor was in a dangerous condition, and whether that condition was the cause of Paggett's fall. The motion is therefore denied.

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