Judge: Melissa R. Mccormick, Case: Dahl v. In-N-Out Burgers, Date: 2022-09-08 Tentative Ruling

Defendant In-N-Out Burgers’ Motion for Summary Judgment

Defendant In-N-Out Burgers moves for summary judgment against plaintiff Alice Dahl’s complaint.  For the following reasons, defendant’s motion is denied.

A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff’s claim.  It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law.  Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. 

If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied.  Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.  If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact.  Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.

Plaintiff’s complaint alleges two causes of action against defendant:  premises liability and negligence.  Plaintiff alleges she tripped on a “peaked protrusion” in a floor mat while leaving defendant’s restaurant.  Plaintiff contends the alleged protrusion constituted a dangerous condition, and that defendant is liable for failing to maintain or repair the floor mat.  Defendant characterizes the alleged protrusion as a “ripple on the edge” of the floor mat.  Defendant argues the alleged protrusion did not constitute a dangerous condition and, if it did, the condition was open and obvious and/or was a trivial defect. 

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.”  Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.  A store owner owes its customers a duty of care to keep its premises reasonably safe.  Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.

The primary evidence on the motion consists of two surveillance videos of the incident.  The court has viewed both videos.  Jennings Decl. ¶¶ 4-7 & Exs. A1 & A2.  The videos depict, inter alia, a raised area at the edge of the floor mat, plaintiff tripping and falling, and plaintiff’s husband gesturing towards the raised area.  The videos depict a store employee stepping on the raised area a few minutes after plaintiff fell, seemingly attempting to flatten it.  About four minutes later, a patron appears to notice the raised area and intentionally either step on it or kick at it.  Exhibit A2 appears to show another patron catch his foot in the same area about four minutes later.  Shortly thereafter, a store employee rolls up the mat and removes it.

The videos, together with the parties’ conflicting interpretations of plaintiff’s deposition testimony and conduct, demonstrate triable issues of material fact with respect to both of plaintiff’s causes of action.  See, e.g., Plaintiff’s Responsive Separate Statement Nos. 9 and 10, and Plaintiff’s Additional Material Facts Nos. 1 and 2.  Defendant’s motion is denied.

Plaintiff’s evidentiary objections are denied for failure to comply with California Rule of Court 3.1354(b).  Defendant’s evidentiary objections to the Schultz Declaration were not material to the disposition of the motion.  Cal. Civ. Proc. Code § 437c(q).   

Plaintiff to give notice.