Judge: Michael E. Whitaker, Case: 20STCV02614, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV02614    Hearing Date: October 18, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Laura Denton in Support of Motion for Summary Judgment
3. Declaration of John Tyson, P.E., in Support of Motion for Summary Judgment
4. Exhibits in Support of Motion for Summary Judgment
5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Counsel in Support of Opposition to Motion for Summary Judgment
3. Compendium of Exhibits
4. Objections to Evidence Submitted in Support of Motion for Summary Judgment
5. Response to Separate Statement of Undisputed Facts Submitted in Opposition to Motion for Summary Judgment
6. Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply and Notice of No Opposition Received to Motion for Summary Judgment
2. Further Reply to Delinquent Opposition to Motion for Summary Judgment
3. Separate Statement in Support of Reply to Opposition to Motion for Summary Judgment
4. Objection to Declaration of Alan S. Turlington in Opposition to Motion for Summary Judgment

PLAINTIFF’S SUPPLEMENTAL PAPERS:

1. Supplemental Brief in Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Supplemental Response to Separate Statement of Facts in Support of Opposition to Motion for Summary Judgment
3. Declaration of Alan S. Turlington in Support of Brief in Opposition to Motion for Summary Judgment

DEFENDANT’S SUPPLEMENTAL PAPERS:

1. Supplemental Reply to Plaintiff’s Supplemental Opposition to Motion for Summary Judgment
2. Objection to Declaration of Brad Avrit

BACKGROUND

Plaintiff Brendan Maloney sued defendant Hughes Markets, Inc. dba Ralphs based on injuries Plaintiff alleges he sustained when he tripped and fell over a wheel stop in a parking lot owned and controlled by Defendant.  Defendant moves for summary judgment on Plaintiff’s sole cause of action for premises liability.  Plaintiff opposes the motion and Defendant replies to Plaintiff’s opposition. 

At the hearing on August 8, 2022 based upon Plaintiff’s intention to retain expert witness Brad P. Avrit, PE (“Avrit”), who would review the incident location and wheel stop at issue to prepare a declaration in support of Plaintiff’s opposition to the motion, the Court continued the hearing per Code of Civil Procedure section 437c, subdivision (h).

PROCEDURAL OBJECTIONS

            Defendant’s Procedural Objections

            Defendant objects to Plaintiff’s initial opposition as untimely.  An opposition to a motion for summary judgment “shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (b)(2).)  Plaintiff filed and served his opposition on July 29, 2022, which is 10 days before the hearing on the motion.  The Court therefore finds Plaintiff’s opposition to be untimely.

            Despite the procedural deficiency, Defendant has nevertheless filed a reply to Plaintiff’s opposition with full briefing on its merits.  Accordingly, the Court finds Defendant will not be prejudiced by the Court’s consideration of the merits of Plaintiff’s untimely, and exercises its discretion to do so.

Plaintiff’s  Procedural Objections

            Plaintiff objects to Defendant’s motion based on the alleged failure of Defendant’s separate statement and evidence in support of the motion to conform with California Rules of Court, rules 3.1350(g)-(h), 3.1110(c), and 3.1113(k). 

First, the Court overrules Plaintiff’s objection to Defendant’s separate statement under Rule 3.1350(h) as without merit.  Plaintiff objects to the separate statement for failure to conform to the issue-by-issue format required for a motion for summary adjudication.  Defendant’s motion does not seek summary adjudication of issues.

Second, although Defendant’s evidence in support of the motion exceeds 25 pages and does not comply with Rules 3.1350(g), 3.1110(c), and 3.1113(k), the Court finds the objections to be inconsequential.  In other words, despite the procedural deficiencies, Plaintiff has nevertheless filed an opposition to the motion with full briefing on the merits.  Accordingly, the Court finds Plaintiff will not be prejudiced by the Court’s consideration of Defendant’s motion on the merits, and exercises its discretion to do so.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)   

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

EVIDENCE

            With respect to Plaintiff’s objections to Defendant’s evidence in support of the motion, the Court rules as follows:

            All of Defendant’s Evidence

1. Overruled

    

   Declaration of Laura Denton

    

1. Overruled

    

   Declaration of John Tyson, P.E.

    

1. Overruled

    

   With respect to Defendant’s objections to the Declaration of Alan S. Turlington, the Court rules as follows:

    

1. Sustained

2. Sustained

3. Overruled

    

   With respect to Defendant’s objections to the Declaration of Brad P. Avrit, P.E., the Court rules as follows:

    

1. Overruled

2. Overruled

3. Overruled

4. Overruled

5. Overruled

6. Overruled

7. Overruled

8. Sustained

9. Sustained

10. Sustained

     

    REQUEST FOR JUDICIAL NOTICE

     

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

            Here the Court grants Plaintiff’s requests for judicial notice Nos. 1 and 2 per Evidence Code section 452, subdivision (d)(1).  The Court denies Plaintiff’s requests for judicial notice Nos. 3-6.

DISCUSSION 

1. PREMISES LIABLITY - ELEMENTS

    

   The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

    

   Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.)  Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

    

1. OPEN AND OBVIOUS DANGEROUS CONDITION

Defendant argues that the subject wheel stop was not a dangerous condition because it was open and obvious, and Plaintiff was not watching where he was going which led to his fall and injuries.  In other words, Defendant contends it is “no[t] liable for injury resulting from an obvious danger or one that could have been observed had [Plaintiff] exercised ordinary care . . . .”  (Mula v. Meyer (1955) 132 Cal.App.2d 279, 287.)  

To establish negligence, a plaintiff must prove duty, breach of duty, causation and damages. Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors.  These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty.  The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.  Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

(Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].)  “Foreseeability of harm is typically absent when a dangerous condition is open and obvious.  Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.  In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.”  (Id. at p. 447 [cleaned up].)   Similarly, in Krongos, the Court of Appeal held “[g]enerally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 (hereafter Krongos).)

“However, this is not true in all cases. It is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger may lead to the legal conclusion that the defendant owed a duty of due care to the person injured.”  (Krongos, supra, 7 Cal.App.4th at p.  393 [cleaned up].)  Stated differently, “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184.)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but if “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122.)

1. DEFENDANT’S EVIDENCE

    

               Defendant proffers the Declaration of Laura Denton (“Denton”) who was employed by Defendant as a safety coach on the date of the incident at the subject premises.  In part, Denton states:  “I inspected the handicap parking stall and the wheel stop Plaintiff claims he fell over and saw there was nothing out of the ordinary with the ground in the area and that the subject wheel stop was in good repair with no apparent defects.  The wheel stop was light gray in color and was readily visible against the black asphalt of the parking lot.”  (Declaration of Laura Denton, ¶ 3.) 

    

               Further, Defendant advances the Declaration of John Tyson (“Tyson”) who is a registered  professional engineer and licensed engineering contractor, and is experienced in accident reconstruction and in safety and forensic engineering.  (Declaration of John Tyson, ¶ 1.)  Tyson  reviewed the following in order to craft his declaration and form his opinions:  (i) Plaintiff’s deposition testimony; (ii) Michaelie Maloney’s deposition testimony; and (iii) the store security surveillance video of the subject incident.  Tyson also inspected the premises.  (Declaration of John Tyson, ¶ 5.) 

    

   Based upon his review of the referenced materials and his education, training and experience, Tyson opines in pertinent part as follows:

    

• The subject parking stall abuts the storefront of the Ralphs market and is located on the west side of the building. A concrete wheel stop exists between each parking stall and the building structure. The subject wheel stop runs from east to west and is situated at the top of each adjacent parking stall. The subject wheel stop is placed off-center but fully within the limit lines of each parking stall such that the wheel stop effectively catches the wheel of any vehicle parked in each respective stall and serves to protect against encroachment of vehicles and/or to prevent unsafe vehicle movement.

• As part of my education, training and experience, I am familiar with the construction, design and requirements for parking lots, which includes the proper use of and placement curb and/or wheel stops (aka car stops).

• Wheel stops are commonly of concrete construction but are also available also in plastic or recycled rubber. They serve to limit forward motion of parking vehicles within parking stalls. They are designed to place a barrier in front of the path of travel of a vehicle and provide a tactile sensation to the driver so they may know that the limitation of parking has been reached so as to prevent further encroachment into building structures, walkways or other pedestrian paths of travel beyond the placed wheel stop. They are generally not designed to limit forward motion of vehicle traveling at a high rate of speed such as in uncontrolled acceleration cases, rather they are a means to provide a specific placement of termination of controlled motion during the parking process in a manner that encroachment will be avoided. They will prevent vehicles from forward motion up to approximately 5 mph.

• Wheel stop placement has been required within Los Angeles since adoption of a LA City ordinance effective 3-24-2013 and is set forth in the Planning and Zoning Code as follows:  “Los Angeles Planning and Zoning SEC. 12.21. GENERAL PROVISIONS. (c) Paving and Car Stops. (Amended by Ord. No. 182,431, Eff. 3/24/13.) Every parking area, every parking garage required by the provisions of this article, every automobile storage area (except those areas utilized for the temporary storage of automobiles for not to exceed six months in any calendar year), every automobile, manufactured home or trailer sales area, and every driveway shall be paved with hard, durable asphaltic paving which has been mixed at a plant and is at least two inches thick after compaction, with portland cement paving at least three inches thick or with an alternative paving material described below. All such areas shall have appropriate bumper guards, wheel stops, steel posts, walls, curbs, suitable landscaping or other installations adequate to prevent vehicles from parking or maneuvering on those portions of a lot upon which a driveway or parking area is prohibited, or into a public right-of-way, or where those portions of a lot are needed to prevent encroachment on walkways or adjoining properties.”

• Wheel stops are required by Section 12.21(6)(c) of the Los Angeles Municipal Code which states:  “Every parking area shall have appropriate wheel stops adequate to prevent vehicles from parking or maneuvering on those portions of a lot upon which a driveway or parking area is prohibited, or into a public right-of-way, or where those portions of a lot are needed to prevent encroachment on walkways or adjoining properties”.

• Similar language regarding the treatment and design of wheel stops is provided in Los Angeles County Park Design Guidelines 2017 Section 4.2.2 Wheel Stops states “Provide wheel stops at all zero height and ADA ramps to prevent parked cars from encroaching onto adjacent walkways or adjacent landscaped areas illustrated in Exhibit 13.” A true and correct copy of the schematic depicting such placement is attached hereto and marked Exhibit “C”.

• Provision of a wheel stop is also mandated in handicapped parking stalls per the ADA accessibility guidelines. The sole reason stated to require such placement is to prevent encroachment of vehicles onto or over signage demarking the handicap parking stall as well as prevent vehicles from parking or maneuvering on those portions of a lot upon which a driveway or parking area is prohibited, or into a public right-of-way, or where those portions of a lot are needed to prevent encroachment on walkways or adjoining properties where interference with wheelchairs or disabled persons is likely.

• Placement of wheel stops within parking spaces are not specifically dimensionally regulated within either the Los Angeles municipal Code or the California ADA requirements, rather they have general figures showing them placed but without reference to dimensions. The only requirement with regard to the specific placement is that they should restrict forward movement of the vehicle preventing encroachment . Thus, practically the placement of the wheel stop must be between the outside edge of the parking area and a typical tire width within the parking space when the car is parked at its furthest position to the opposite side of the parking space. Given that parking spaces are variable in width this positioning is also variable. Based on my over thirty years experience this location is most often abutting the delineating stripe on one side of the space but can be spaced up to within a tire width from the line (sic)

• Los Angeles Department of Building and Safety Information Bulletin December 2, 2019 Revision Effective January 1, 2020 contains a schematic of an ADA parking space which contains within it an outline of a parking wheel stop. There are no required dimensions provided. The wheel stop shown in the figure is depicted offset from the parking boundary line and it shows a larger space than the typical width of a car tire. Clearly this situation would not be sufficient to prevent forward motion to a vehicle unless the wheel stop is wider than a typical vehicle track width. Sometimes a minimum of 6 feet is recommended but this is not codified. It should be noted that at the top of the bulletin the following advisory is posted “THESE DIAGRAMS ILLUSTRATE THE SPECIFIC REQUIREMENTS OF THESE REGULATIONS AND ARE INTENDED ONLY AS AN AID FOR BUILDING DESIGN AND CONSTRUCTION”. Therefore the placements of objects cannot be scaled unless a specific dimension is provided. However, clarifying information with respect to the intent of the bulletin is provided under General Notes “11B-502.7.2 Wheel stops. A curb or wheel stop shall be provided if required to prevent encroachment of vehicles over the required clear width of adjacent accessible routes.” Thus, the only requirement with regard to the specific placement is that they should be placed such that they restrict forward movement of the vehicle preventing encroachment. A true and correct copy of the Los Angeles Department of Building and Safety Information Bulletin December 2, 2019 Revision Effective January 1, 2020 is attached hereto and marked Exhibit “D”.

• The subject wheel stop complies with local code and guideline requirements that are in favor of wheel stop placement including both the Los Angeles Municipal Code, Los Angeles California Building Code standards and ADA accessibility guidelines.

• The interface between the subject wheel stop and asphalt was clearly demarcated by the difference between the black asphalt and light gray concrete color of the wheel stop. The subject wheel stop was in good condition and well secured with minor chipping apparent. A slight movement of the wheel stop appeared to be present but it remained in the wheel stop interaction position and had not migrated outside of the parking stall boundaries.

• There is no requirement that a wheel stop be painted any color in particular, (sic) They come pre colored in a variety of color (sic) including concrete, dark gray, white, yellow or blue.  In this case, the light gray color of the wheel stop against the black asphalt of the subject parking lot was colored was more (sic) than adequate to safely demarcate the change in elevation.  Moreover, the change in elevation between the asphalt and the wheel stop was an open and obvious as (sic) condition.   

(Declaration of John Tyson, ¶¶ 6-14, 167-18.) 

            In addition, Defendant relies on Plaintiff’s deposition testimony in which Plaintiff states:  “And I guess if anything happened, I blame myself for not watching where I was going, which is the case.”  (Declaration of Kori N. Macksoud, ¶ 3, Exhibit B, 23:20-22.)   Defendant also advances store security surveillance video from the date of the subject incident and photos of the subject wheel stop.  (Id. at ¶¶ 4, 6, Exhibits C & E.) 

Defendant’s evidence is sufficient to meet its burden of persuasion/production of evidence to show that Plaintiff will be unable to establish that Defendant had a duty of due care,  Defendant breached the duty of due care, or Defendant’s breach of the duty of due care caused or contributed to Plaintiff’s alleged injuries. 

Accordingly, Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact.

1. PLAINTIFF’S EVIDENCE

    

   Plaintiff proffers the Declaration of Michaelie Maloney who avers as follows: 

    

• On April 14, 2018, at or around 5:00pm we drove to Ralphs, located at 14440 Burbank Blvd, Sherman Oaks CA 91401. Plaintiff was sitting in the front passenger seat.

   

• I parked in a handicap spot right by the front entrance doors to Ralphs.

• I waited in the driver’s seat of my car and remained parked while Plaintiff went inside the store to shop. I was reading a newspaper in my car while waiting for Plaintiff to return.

• Plaintiff was rounding the front passenger side of my car when I first saw him return and all of the sudden he fell down.

• I immediately got out and ran to the other side of my car to see Plaintiff lying on the ground in pain. He was lying on his left side and had blood on his face.

• Plaintiff stayed lying on the ground until the paramedics arrived and took him to the hospital.

   

  (Declaration of Michaelie Maloney, ¶¶ 2-7.) 

   

  Further, Plaintiff advances his own declaration.  In that declaration, Plaintiff declares: 

   

• On April 14, 2018, at or around 5:00pm I was a front passenger in my wife’s vehicle when she parked in front of Ralphs, located at 14440 Burbank Blvd, Sherman Oaks CA 91401.

   

• I went into the store to shop while my wife waited in the driver’s seat of her vehicle and remained parked in front of Ralphs.

• I completed my purchase in the store and then left the store and returned to my wife’s vehicle still parked in the same spot in front of Ralph’s. I was holding a small grocery bag and walking along the front passenger side of the vehicle to open the front passenger door and get inside. As I was approaching the space between the front passenger door of my wife’s vehicle and the car parked next to it, my right foot got stuck on a wheel stop underneath my wife’s vehicle, causing me to trip and fall, landing hard on the ground.

• I never saw or noticed the wheel stop at any time before tripping and falling. The first time I saw it was after I fell and was still lying on the ground.

• I remained lying on the ground until the paramedics arrived and took me to the emergency room.

   

  (Declaration of Brendan Maloney, ¶¶ 2-6.)  Plaintiff also advances his deposition testimony in which he testified in pertinent part:

   

• “As I recall, I walked alongside the car towards what I thought was a series of stairs. It  turned out to be a stop block. You know, when you pull into a parking lot, they only go so far. It's a stop block. So that's what I saw” when he exited Defendant’s store.

• He did not notice the wheel stop when he exited his vehicle and before entering Defendant’s store.

• After exiting Defendant’s store and returning to his vehicle, he encountered the wheel stop and fell.

• He did not notice the wheel stop, which “seemed pretty new,” before he fell. 

• He claimed the wheel stop caused him to fall. 

• “I was walking alongside the car. As I was approaching the space between my car and the car next to it in that little slot and as I got into that slot between the cars, that's when I couldn't lift my right foot and it stopped full by a block. That's when I happened to look down and that's when I saw the colored condition of the block. At the same time I fell forward.”

(Declaration of Alan S. Turlington, ¶ 5, Exhibit D, 20:2-13, 21:2-9, 21:14-19, 22:1-8, 23:8-19.) 

            In addition, Plaintiff advances the Declaration of Brad P. Avrit (“Avrit”) who is a  licensed civil engineer, and is experienced with safety engineering, civil engineering and accident reconstruction.  (Declaration of Brad P. Avrit, ¶¶ 2-3.)  Avrit  reviewed the following in order to craft his declaration and form his opinions:  (i) Plaintiff’s complaint; (ii) Declaration of John Tyson; (iii) Plaintiff’s deposition testimony; (iv) Michaelie Maloney’s deposition testimony; (v) photos of the subject incident area; and (vi) google street view image of the subject wheel stop.  (Declaration of Brad P. Avrit, ¶ 5.) 

Based upon his review of the referenced materials and his education, training and experience, Tyson opines in pertinent part as follows:

• The subject incident area consisted of a white concrete accessible parking stall wheel stop in front of an accessible ‘Reserved Parking’ sign and adjacent to an accessible walkway with blue stripes. Figure 1, Figure 2, and Figure 3 below show Defendant Ralphs-provided inspection photographs of the subject accessible wheel stop. Figure 4 below shows a Plaintiff-provided incident photograph of the subject incident area (red square). Figure 1 through Figure 4 below show that the subject incident area was in a similar condition on the date of Mr. Tyson’s February 24, 2022 inspection and the time of Plaintiff’s fall (See also John Tyson Declaration pg. 2).

• In my opinion, the subject wheel stop presented a dangerous condition on the date of Plaintiff’s trip and fall incident. Section 11B-502.7 of the 2016 California Building Code (“CBC”) states that “Parking spaces and accessible aisles shall be designed so that cars and vans, when parked, cannot obstruct the required clear width of adjacent routes.” (attached hereto as Exhibit ‘B’; See also American Disabilities Act (“ADA”) 2010 Accessible Guidelines Section 502.7). ASTM 1637.02 states that “Wheel stops shall not be placed in pedestrian walkways or foreseeable pedestrian paths” (Section 9.2), and that “Wheel stops shall be no longer than 6ft. and shall be placed in the center of parking stalls” (Section 9.4) (attached hereto as Exhibit “C”). International Code Council (“ICC”) A117.1-2017 states that “…wheel stops shall be located so that they do not obstruct the clear floor space required by Section 502.11.1 or the accessible route required by Section 502.11.2” (Section 502.11.3) (attached hereto as Exhibit “D”). ADA Section 303.3 states that “Changes in level between ¼ inch (6.4 mm) high minimum and ½ inch (13mm) high maximum shall be beveled with a slope not steeper than 1:2.”, and Section 303.4 states “Changes in level greater than ½ inch (13 mm) high shall be ramped, and shall comply with 405 or 406.” (attached hereto as Exhibit ‘E’; See also ASTM F1637-13 §§5.2 and 5.7.1.2 attached hereto as Exhibit ‘F’)

• Section 322.4 of Charles E. Turnbow’s ‘Slip and Fall Practice’ article states that if wheel stops “…are encountered unexpectedly, they will likely cause a pedestrian to stumble and probably fall. The tire stops must be inset from the limit line of the parking stall to assure that there is a free pedestrian walkway between the parked cars…Good design practice is to inset the tire stops 1 ½ to 2 feet from the left limit line of the parking stall.” (attached hereto as Exhibit ‘G’). Highway Research Board ‘Parking Principles’ article states that “Wheel stop blocks or curbing in the interior of a lot have many disadvantages; they may interfere with and present a hazard to people walking between cars…” (attached hereto as Exhibit ‘H’; See also Paul C. Box’s ‘Parking and Terminals’ article attached hereto as Exhibit ‘I’).

• Defendant Ralphs violated the CBC, ADA, and ICC when it improperly installed the subject wheel stop off center within the subject parking stall prior to the incident date. Figure 1 and Figure 2 above show that the subject wheel stop was both within an accessible parking stall and adjacent to an accessible walkway. Ms. Maloney testified that her vehicle might have slightly covered the subject wheel stop at the time of Plaintiff’s tripping incident (Michaelie Maloney Deposition pg. 24). While Mr. Tyson testified that the subject wheel stop was off center, he claimed that the ADA does not regulate the placement of accessible parking stall wheel stop placements (John Tyson Declaration pg. 3). Mr. Tyson also claimed that the sole purpose of the subject bollard was to prevent vehicles from encroaching onto property (John Tyson Declaration pgs. 5-6).

• Both of Mr. Tyson’s claims are wrong because the ADA required Defendant Ralphs to utilize wheel stops to prevent vehicles from invading accessible pedestrian pathways. The subject incident area was a foreseeable pathway to access the Defendant Ralphs store and/or nearby vehicles. As stated above, an accessible parking stall wheel stop should be offset from each barrier by at least 1 ½ feet. Defendant Ralphs created a hazardous condition for pedestrians utilizing accessible walkways by failing to install the subject wheel stop in the center of the parking stall.

• The Institute of Transportation Engineers ‘Traffic Engineering Handbook (“Traffic Handbook”) states that “…Bollards consisting of concrete-filled steel pipes painted traffic yellow, are often the better solution: the required sign for an accessible stall can be buried in the bollard.” (attached hereto as Exhibit ‘J’). Figure 1 above also shows the presence of an accessible parking sign and wall at the front of the subject accessible stall. It is reasonably foreseeable that a pedestrian like Plaintiff would traverse the subject incident area to access the passenger side of a vehicle because it is the shortest route. Since the wall in Figure 1 limited wheel stop placement options to only ones within the subject accessible parking stall, Defendant Ralphs should have installed a bollard either at the front of the accessible parking stall or on the Figure 1 wall. The subject wheel stop presented a substantial tripping hazard for pedestrians like Plaintiff who accessed the right side of the subject parking stall. Defendant Ralphs violated multiple safety standards by failing to maintain the subject incident area in a reasonably safe manner for shoppers and employees.

• From a human factors standpoint, the subject wheel stop’s appearance and location within an accessible pedestrian pathway made it indistinguishable to pedestrians on April 14, 2018. Recognized, reliable industry standards indicate that “People looking straight ahead may not look down as the surface 10 ft (3.05 m) or less in front of them unless they expect a hazard in their path” (Study of Forensic Human Factors attached hereto as Exhibit ‘K’).

• As stated above, Plaintiff did not look down at the ground until he started falling after he tripped on the subject wheel stop (Plaintiff Deposition pgs. 22-24). Figure 4 above shows that the subject wheel stop was partially covered by Plaintiff’s and Ms. Maloney’s vehicle at the time of his incident. It is foreseeable that a customer like Plaintiff would not look down at the subject wheel stop area because he is focusing on accessing a nearby vehicle or Defendant Ralph’s store entrance. In my opinion, Plaintiff therefore acted in a reasonable manner notwithstanding his failure to identify the subject wheel stop’s tripping hazard. Defendant Ralph’s failure to install a bollard in the subject accessible parking stall instead of the subject wheel stop notwithstanding CBC, ADA, and ICC accessible walkway requirements therefore created a dangerous condition for Plaintiff on the incident date.

(Declaration of Brad P. Avrit, ¶¶ 8-15.) 

CONCLUSION AND ORDER

Plaintiff’s evidence is sufficient to meet his burden of production to show that triable issues of material fact exist as to whether Defendant had a duty of due care, whether Defendant breached that duty of due care, and whether Defendant’s breach of the duty of due care caused or contributed to Plaintiff’s harm. 

Hence, in considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorable to Plaintiff, the Court finds that there are triable issues of material fact regarding Defendant’s Undisputed Materials Facts Nos. 7, 9, 14, 21, 23-27 and 20-30.  Stated differently, the Court cannot determine as a matter of law that the alleged dangerous condition, the subject wheel stop, was open and obvious to absolve Defendant of liability for Plaintiff’s claimed injuries.  In particular, there are questions whether it is foreseeable that the wheel stop may cause injury because the expert witnesses disagree about placement of the wheel stop.  If the placement was proper, then foreseeability of harm from the wheel stop may not be present.  But if the placement was improper, then foreseeability of harm from the wheel stop may be present, triggering a duty to remedy. 

Therefore, the Court denies Defendant’s motion for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.