Defendant argues it is entitled to summary judgment because the condition and placement of the mat did not constitute a dangerous condition.  Defendant asserts the mat was only about 10 months old, and the surveillance videos and photographs from the incident demonstrates no curled up corners, wrinkles, or wear and tear on the mat. Defendant argues the photograph of the mat, taken after Plaintiff tripped and fell, reveals no curled edges or wrinkles, and that approximately 480 customers traversed the mat during the hour prior to Plaintiff’s incident without issue. Defendant further argues that the mat was open and obvious, and that at most, the mat would constitute a trivial defect.  

Plaintiff asserts the photographs submitted by Defendant of the mat, taken immediately after Plaintiff tripped and fell, demonstrates a curled-up/wrinkled area on the side of the mat. Furthermore, Plaintiff argues that Defendant’s surveillance video is a distance away from the mat at issue, and the mat itself is partially blocked by a part of the building. Furthermore, Plaintiff contends that the 480 individuals walking over the top of the mat is not the area which Plaintiff claims caused her fall, wherein Plaintiff’s foot caught on the side of the mat that was curled-up/wrinkled. After Plaintiff’s fall, Defendant’s employees removed the mat. 

Defendant contends Plaintiff has not provided responsive evidence, and therefore fails to create a triable issue of material fact. Further, Defendant contends its employees removing the mat from the dining room after the fall is a subsequent remedial measure, which is inadmissible to prove negligence pursuant to Evidence Code § 1151. Defendant also argues that Plaintiff fails to provide any evidence of a curled-up/wrinkled mat, that her claims are speculative, and Plaintiff has not provided any expert opinions.  

II. Motion for Summary Judgment 

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

The elements of a negligence and premises liability cause of action are the same: 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 in order to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113.) 

“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.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)  The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.  (Martinez, supra, 121 Cal.App.4th at p. 1184.)  In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer).  (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.) 

A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable.  Ordinarily, the existence of a dangerous condition is a question of fact.  However, it can be resolved as a question of law if reasonable minds can come but to one conclusion.  It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects.  (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) 

The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.  “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.”  (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.)   

On October 4, 2019, Plaintiff and her husband Vicente Barrera visited the In-N-Out restaurant located at 6000 Pacific Blvd., Huntington Park, CA ("Store #74). (UMF 1.) Plaintiff and Mr. Barrera entered through the only doorway at Store #74 and, without incident, walked across a black floor mat that was placed inside the front door. (UMF 2.) Plaintiff did not observe any issues with the mat before she fell. (UMF 3.) After finishing their meal, Plaintiff and Mr. Barrera walked towards the doorway to Store #74. Mr. Barrera walked ahead of Plaintiff and across the mat, without incident. (UMF 5.) Plaintiff attempted to exit the restaurant after Mr. Barrera, and while older customers were attempting to enter the restaurant through the same door, Plaintiff did not look down at the mat, and tripped and fell before exiting the restaurant. (UMF Nos. 6-9.) Immediately after the incident, In-N-Out took pictures of the condition of the mat that Plaintiff alleges she tripped on. (UMF 11.) The photographs In-N-Out took immediately after the incident of the mat accurately reflect what the mat looked like at the time of the incident. (UMF 12; Exhs. D and E.) 

The Court reviewed Defendant’s surveillance video and photographs submitted with the motion. The video itself is not in real time, choppy, and not definitive due to the distance and angle of the camera. The video quality and distance does not render the mat’s details distinguishable, and the Court is unable to clearly discern the condition of the mat from the footage. The video, therefore, does not support Defendant’s contention that there were no curled-up edges on the mat. Further, the two photographs taken by Defendant’s employee, Claudia Hachee, of the mat Plaintiff tripped upon while waiting for the ambulance to arrive demonstrates a raised portion on the center edge of the mat (Def. Compendium of Evidence, Exhs. D and E.). It is an undisputed fact that these photographs accurately depict the mat at the time of the incident. (UMF 12.) Plaintiff testified at her deposition she tripped because her “foot got stuck” against the mat (Def. Compendium of Evidence, Exh. B; Plaintiff’s Depo. p. 32, lines 5-10), that “[t]he mat was a little folded, and that’s where I tripped” and the fold was located “on the edge of the mat” (Id. at p. 33, lines 17-21.).  

Defendant is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 20th day of September 2023