Judge: Steven A. Ellis, Case: 21STCV13446, Date: 2024-03-12 Tentative Ruling
Case Number: 21STCV13446 Hearing Date: March 21, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant City of Beverly
Hills.
Tentative
The motion is denied.
Background
Plaintiff
Martha Fox (“Plaintiff”) alleges that on March 8, 2020, she sustained severe
and permanent injuries after falling on uneven cement in an alleyway at or near
404 North Palm Drive in Beverly Hills. She filed the complaint in this action
on April 8, 2021, asserting causes of action for premises liability and
negligence against City of Beverly Hills (“City”), Excel Paving Company, and
Does 1 through 50.
On May
13, 2021, City filed its answer to the complaint and a cross-complaint for
indemnity against Palp, Inc. dba Excel Paving Company (“Palp”) and Roes 1
through 50.
On April
18, 2022, Plaintiff amended her complaint to name Palp as Doe 1.
Following
a vacated default, Palp filed its answer to the complaint and cross-complaint
on September 12, 2022.
On
January 3, 2024, City filed this motion for summary judgment, and its
supporting evidence. Plaintiff filed her opposition on March 7, along
with her supporting evidence and objections to City’s evidence. City filed its reply
on March 15, along with objections to Plaintiff’s evidence.
Legal Standard
“The purpose of the law of 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. Atlantic 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.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 381-382.)
As to each cause of action as framed by the
complaint, a defendant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that one or
more elements of the cause of action ... cannot be established, or that there
is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar,
supra, 25 Cal.4th at pp. 850-851.)
A plaintiff or cross-complainant moving for
summary judgment or summary adjudication must satisfy the initial burden of
proof by presenting facts to show “that there is no defense to a cause of
action if that party has proved each element of the cause of action entitling
the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(1).) Once the plaintiff or cross-complainant has met that burden, the
burden shift to the defendant or cross-defendant to show that a “triable issue
of one or more material facts exists as to the cause of action or a defense
thereto.” (Ibid.)
The party opposing a motion for summary
judgment or summary adjudication may not simply “rely upon the allegations or
denials of its pleadings” but must instead “set forth the specific facts
showing that a triable issue of material fact exists.” (Code Civ. Proc., §
437c, subds. (p)(1) & (p)(2). To establish a triable issue of material
fact, the party opposing the motion must produce substantial responsive
evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.
(2006) 39 Cal.4th 384, 389.)
Evidentiary
Objections
Each party objects to some of the other party’s evidence.
Evidence presented in support of, or in opposition to, a motion for summary
judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court
must “consider all of the
evidence set forth in the papers, except the evidence to which objections have
been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)
Plaintiff’s Objections
Plaintiff’s
Objections Nos. 1-3 and 6 are OVERRULED.
Plaintiff’s
Objection No. 4 (to Exhibit D, which is described as “a true and correct copy
of Exhibit 2 to Plaintiff’s deposition transcript”) is SUSTAINED in part and
OVERRULED in part. The Objection is OVERRULED to the extent that Exhibit D is offered
as a true and correct copy of Exhibit 2 to Plaintiff’s deposition transcript. The
objection is SUSTAINED to the extent that Exhibit D is offered as a true and
correct representation of the alleyway at the time of the accident (or on any
other date or time), as to which no foundation based on anyone’s personal
knowledge has been laid.
Plaintiff’s
Objection No. 5 (to Exhibit E, which is described as “a true and correct copy
of Exhibit 3 to Plaintiff’s deposition transcript”) is SUSTAINED in part and
OVERRULED in part. The Objection is OVERRULED to the extent that Exhibit E is
offered as a true and correct copy of Exhibit 3 to Plaintiff’s deposition
transcript. The objection is SUSTAINED to the extent that Exhibit E is offered
as a true and correct representation of the alleyway at the time of the
accident (or on any other date or time), as to which no foundation based on
anyone’s personal knowledge has been laid.
Plaintiff’s
Objection No. 7 (to paragraph 4 of the Contreras Declaration) is SUSTAINED in
part and OVERRULED in part. The Objection is SUSTAINED, as speculation and as
not based on personal knowledge, with regard to the following passage: “This
sign would have been clearly in front of Plaintiff as she came out of her
apartment building walking into the alley and facing essentially easterly ….”
The Objection is otherwise OVERRULED.
City’s Objections
City’s Objections
to the Burns Declaration, Nos. 2-4 and 6, are OVERRULED.
City’s Object to
the Burns Declaration, No. 1, is SUSTAINED. Expert testimony is unnecessary to
describe the contents of a photograph. The Court will make its ruling based on
the evidence, not an expert witness’s description of what he observes in a
photograph.
City’s Objection
to the Burns Declaration, No. 5, is SUSTAINED as lacking foundation.
As to
City’s objections to the Burns Declaration, the Court further notes that Mr.
Burns has appropriate credentials and his testimony relates to a subject that is sufficiently
beyond common experience that the opinion of an expert witness would assist the
trier of act; is based on information of the type on which an expert may
reasonably rely; is based on reasons supported by the information on which the
expert relies; and is not speculative.
(Evid. Code, §§ 801-802; Sargon Enterprises v. USC (2012) 55 Cal.4th
747, 771-21.) Mr. Burns’s opinion testimony is not, of course, binding on the Court. “The fact that a witness can be found to opine
that … a condition constitutes a significant risk and a dangerous condition
does not eliminate this court’s statutory task pursuant to Government Code
section 830.2, of independently evaluating the circumstances.” (Thimon v.
City of Newark (2020) 44 Cal.App.5th 745, 755; accord Sun v. City of
Oakland (2008) 166 Cal.App.4th 1177, 1189; Davis v. City of Pasadena
(1996) 42 Cal.App.4th 701, 705.) But expert opinion may be admissible,
relevant, and helpful to the Court, even if it is not determinative. The Court will consider all of the
admissible evidence (including expert opinion evidence) in conducting its
independent obligation (in which expert opinion evidence is not determinative)
to evaluate whether the existence of a dangerous condition may be resolved on
this record as a matter of law.
City’s Objections
to the Smith Grunfeld Declaration, Nos. 1-2, are OVERRULED.
City’s Objections
to the Benson Declaration, No. 1, is OVERRULED.
City’s Objection
to the Benson Declaration, No. 2, is SUSTAINED in part and OVERRULED in part.
The Objection is SUSTAINED as to the first sentence of paragraph 9 as
speculative and not based on personal knowledge. The Objection is otherwise
OVERRULED.
Discussion
Plaintiff resides
at 404 North Palm Drive in Beverly Hills. (Oren Decl., Exh. B [“Plaintiff
Depo.”], at 9:23-25.) She has lived there since approximately 1984. (Id.,
at 10:1-8.) She drives almost every day and parks her car in the carport behind
the apartment building. (Id., at 10:16-11:8.) When she walks from her apartment
to her car, she walks through the alleyway. (Id., at 11:10-12:1; see
also PSAMF, Nos. 34, 60.)
On March 8, 2020,
shortly before 6:25 pm, Plaintiff fell in the alleyway, hit her head on the
ground, lost consciousness, and began bleeding profusely. (Defendant’s
Statement of Undisputed Material Facts [“DSUMF”], No. 2; Plaintiff’s Statement
of Additional Material Facts [“PSAMF”], Nos. 1-2.) Plaintiff’s next memory is
waking up in a hospital hours later. (PSAMF, No. 5.) Plaintiff does not
remember the moments immediately before her injury and does not know what
caused her to fall. (DSUMF, No. 3; PSAMF, Nos. 4, 46.)
The alleyway runs
North-South. (DSUMF, No. 2; PSAMF, Nos. 12, 18.) The alleyway contains a
24-inch wide concrete V-gutter, sometimes also referred to as an “aqueduct” or
“cement water run off” or “V-ditch” that runs North-South along the length of
the alleyway. (PSAMF, No. 23.)
At the time of
the accident, there was ongoing construction in the alleyway. (DSUMF, No. 4;
PSAMF, No. 19.) The construction was managed by City and performed by co-Defendant
Palp. (PSAMF, Nos. 20-21.) Plaintiff was aware of the construction activity, at
least in general terms. (DSUMF, Nos. 4-5.)
As part of the
construction, Palp removed the existing asphalt pavement, milled down the
asphalt to its full death, repaired or replaced it as appropriate, and then
restored the surface stripping to approximately its original surface height.
(PSAMF, No. 22.) Two witnesses, Paige Smith Grunfeld and Michael Benson,
testified that at the time of the accident, with the pavement removed, the
aqueduct or V-gutter was “approximately four inches above the surface area” or
“several inches above the surface area,” and that the ground in the alley “was
uneven and contained loose gravel.” (Smith Grunfeld Decl., ¶ 3; Benson Decl., ¶
3; see also Smith Grunfeld Decl., Exh. 2; Benson Decl., Exh. 2; PSAMF, No. 24.)
Ms. Smith
Grunfeld and Mr. Benson both testified that although they did not see Plaintiff
fall, they saw Plaintiff’s body lying on the ground, perpendicular to the
alleyway, with her head on the East side. (DSUMF, No. 2; PSAMF, Nos. 12, 17-18.)
Her head was several feet to the East of the V-gutter. (Smith Grunfeld Decl., ¶¶
8, 10-11 & Exh. 1; Benson Decl., ¶¶ 7, 10-11 & Exh. 1.) Ms. Smith
Grunfeld testified that Plaintiff’s feet were in the V-gutter, one foot east of
the west lip. (Smith Grunfeld Decl., ¶¶ 8, 10-11 & Exh. 1.) Mr. Benson
testified that Plaintiff’s feet were either in the V-gutter, one foot east of
the west lip, or at the west edge of the V-gutter. (Benson Decl., ¶¶ 7, 10-11
& Exh. 1.)
In her Complaint, Plaintiff asserts one
cause of action against City, asserting that he was injured as a result of a dangerous
condition on public property under Government Code section 835. As set forth in
the statute, there are four elements for such a claim:
“[A] public entity is liable for injury
caused by a dangerous condition of its property if the plaintiff establishes
[1] that the property was in a dangerous condition at the time of the injury,
[2] that the injury was proximately caused by the dangerous condition, [3] that
the dangerous condition created a reasonably foreseeable risk of the kind of
injury which was incurred, and [4] either: (a) A negligent or
wrongful act or omission of an employee of the public entity within the scope
of his employment created the dangerous condition; or¿(b) The public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a
sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.”
(Gov’t Code, § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14
Cal.5th 639, 653; Thimon, supra, 44 Cal.App.5th at p. 753.)
City moves for
summary judgment on essentially three grounds: (1) that there was only a
trivial defect, and not a dangerous condition, present in the alleyway at the
time of the accident; (2) that the allegedly dangerous condition was open and
obvious; and (3) that Plaintiff cannot establish causation. The Court will
consider each in turn.
Dangerous Condition/Trivial Defect
The term “dangerous condition” means a
“condition of property that creates a substantial (as distinguished from a
minor,¿trivial¿or insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is reasonably
foreseeable that it¿will be used.”¿(Gov. Code, § 830, subd. (a); see also Thimon,
supra, 44 Cal.App.5th at p. 754.)¿“The existence of a dangerous condition
ordinarily is a question of fact, but the issue may be resolved as a matter of
law if reasonable minds can come to only one conclusion.” (Peterson v. San
Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810; accord Stack v.
City of Lemoore (2023) 91 Cal.App.5th 102, 110.)
Plaintiff
has the burden of proving the existence of a dangerous condition and each
element of a cause of action under Government Code 835. A court may not presume
that there was a dangerous condition merely because the plaintiff was injured.
(Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241
[describing such an argument as “reason[ing] backwards”].)
“A condition is not dangerous within the
meaning of the statute unless it creates a hazard to those who foreseeably will
use the property ... with due care. Thus, even though it is foreseeable
that persons may use public property without due care, a public entity may not
be held liable for failing to take precautions to protect such persons.”¿(Matthews
v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition
of the property involved should create a ‘substantial risk’ of injury, for an
undue burden would be placed upon public entities if they were responsible for
the repair of all conditions creating any possibility of injury however remote
that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187
Cal.App.3d 122, 130, fn.5.)
Government
Code section 830.2 provides that a condition is not a “dangerous condition”
under the Government Claims Act “if the trial or appellate court, viewing the
evidence most favorably to the plaintiff, determines as a matter of law that
the risk created by the condition was of such a minor, trivial or insignificant
nature in view of the surrounding circumstances that no reasonable person would
conclude that the condition created a substantial risk of injury when such
property or adjacent property was used with due care in a manner in which it
was reasonably foreseeable that it would be used.” (Gov’t Code, § 830.2.)
This statutory principle is sometimes referred to as “the trivial defect
doctrine.”
It is impossible to maintain public
walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at pp. 109-110;
Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11,
26.) The Government Claims Act is not intended to make public entities
“insurers” against injuries arising from trivial defects. (Stack, supra, 91
Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather,
the trivial defect doctrine shields public entities from liability for
“minor, trivial, or insignificant” defects. (Huckey v. City of Temecula (2019)
37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) “The
trivial defect doctrine is not an affirmative defense. It is an aspect of duty
that a plaintiff must plead and prove.” (Huckey, supra, 37
Cal.App.5th at p. 1104.)
“In appropriate cases, the trial court may
determine ... whether a given walkway defect was trivial as a matter of
law.” (Ibid.) “‘Where reasonable minds can reach only one
conclusion—that there was no substantial risk of injury—the issue is a question
of law, properly resolved by way of summary judgment.’” (Id. at
pp. 1104-1105 (quoting Caloroso v. Hathaway (2004) 122
Cal.App.4th 922, 929).) “If, however, the court determines that sufficient
evidence has been presented so that reasonable minds may differ as to whether
the defect presents a substantial risk of injury, the court may not conclude
that the defect is trivial as a matter of law.” (Huckey, supra, 37
Cal.App.5th at p. 1105.)
Where a plaintiff alleges a cause of action
based upon a dangerous condition in a sidewalk or other walkway, courts
generally begin their analysis by considering the size of the defect. The size
of the height differential, rise, or other defect is often the “most important”
factor. (Stack, supra, 91 Cal.App.5th at p. 111; see also, e.g., Huckey,
supra, 37 Cal.App.5th at p. 1105 [stating that size of defect “may be one
of the most relevant factors”].) As the Court of Appeal has explained, however,
“[i]n determining whether a given walkway defect is trivial as a matter of law,
the court should not rely solely upon the size of the
defect.” (Huckey, supra, 37
Cal.App.5th at p. 1105 [emphasis in original].) “[A] tape measure alone cannot
be used to determine whether the defect was trivial.” (Caloroso, supra, 122
Cal.App.4th at p. 927.) Rather, a “court should consider other circumstances
which might have rendered the defect a dangerous condition at the time of the
accident.” (Huckey, supra, 37 Cal.App.5th at p. 1105.) “These
other circumstances or factors include whether there were any broken pieces or
jagged edges in the area of the defect, whether any dirt, debris or other
material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge
of the area, whether the accident occurred at night or in an unlighted area,
the weather at the time of the accident, and whether the defect has caused any
other accidents.” (Ibid.) “In sum, ‘[a] court should decide
whether a defect may be dangerous only after considering all of the
circumstances surrounding the accident that might make the defect more
dangerous than its size alone would suggest.’” (Ibid. [quoting Caloroso,
supra, 122 Cal.App.4th at p. 927].)
Here, there is evidence in the summary
judgment record that the size of the height differential between the lip of the
V-gutter and the surrounding (milled down) surface was “approximately four inches” or “several inches.” (Smith Grunfeld Decl., ¶
3; Benson Decl., ¶ 3; see also Smith Grunfeld Decl., Exh. 2; Benson Decl., Exh.
2; PSAMF, No. 24.) That, along with all of the other evidence in the record, is
sufficient to establish that there is triable issue as to whether there was a
dangerous condition present in the alleyway at the time of the accident.
Open and Obvious
If a dangerous
condition exists, the property owner is “under a duty to exercise ordinary care
either to make the condition¿reasonably safe …. or to give a warning adequate
to enable them to avoid the harm.”¿¿(Bridgman v. Safeway Stores, Inc.¿(1960)
53 Cal.2d 443, 446; see also, e.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672-73.) In some cases, and subject
to certain exceptions, a dangerous condition may be so obvious that the
condition itself serves as a warning, and the landowner may have no further
duty to remedy or warn of the condition. (See Kinsman, supra, 37 Cal.4th at p. 673; Montes v. YMCA of Glendale (2022) 81 Cal.App.5th 1134,
1142; Christoff
v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Krongos v.
Pacific Gas Electric Co. (1992) 7
Cal.App.4th 387, 393.)
For at least two
reasons, however, the record does not support a finding that, as a matter of
law, City either had no duty to warn or did not breach its duty to warn.
First, the
evidence in the record regarding the signage is not as one-sided as City contends.
Plaintiff does not recall seeing warning signs about tripping hazards or other
dangerous conditions in the alley. (Plaintiff Depo., at 15:8-19; PSAMF, No.
47.) Neither does Ms. Smith Grunfeld or Mr. Benson. (Smith Grunfeld Decl., ¶ 3;
Benson Decl., ¶ 3; PSAMF, Nos. 48-49.) City relies primarily on the photographs
that are marked in the summary judgment record as Exhibits D, E, and F. (See
DSUMF, No. 6.) But the Court has sustained (in relevant part) the objections to
Exhibits D and E, and in any event City has not established that the signs that
appear in these photographs are located in the area along the path that
Plaintiff walked from her apartment to her car. The Court overruled the
objection to Exhibit F, along with the objection to most of the testimony of
Officer Contreras (Contreras Decl., ¶ 4), but again City has not established as
a matter of law that the “Open Trench” sign was along the path that Plaintiff
walked, either on the day of the accident or any other day. What Plaintiff saw,
and when she saw it, are disputed and triable issues of fact.
Second, even
if the danger was open and obvious, the rule that there is no duty to warn (and
therefore no breach of the duty of care) when the danger is open and obvious is
subject to exceptions. “It is foreseeable that even an obvious
danger may cause injury, if the practical necessity of encountering that
danger, when weighed against the apparent risk involved, is such that under the
circumstances, a person might choose to encounter the danger.” (Kinsman, supra,
37 Cal.4th at p. 673; see also, e.g., Krongos, supra, 7 Cal.App.4th at pp.
393-395 (reversing summary judgment for defendant even though the risk of harm
from clearly visible overhead power lines is obvious.) The exception,
rather than the general rule, applies here, where it was foreseeable that, as a
matter of practical necessity, Plaintiff and others needed to walk through the
alley, and encounter the dangerous condition, to get to their cars. (Plaintiff Depo.,
at 11:10-12:1; see also PSAMF, Nos. 34, 60.)
On
this record, the Court cannot find, as a matter of law, that there either was
no duty to warn or no breach of the duty to warn.
Causation
Plaintiff has no
recollection of the accident, and there is no evidence that anyone else saw her
fall. (DSUMF, No. 3; PSAMF, Nos. 4, 46; see also Smith Grunfeld Decl., ¶¶ 4-6; Benson
Decl., ¶¶ 4-6.) Accordingly, City argues that Plaintiff cannot establish the
element of causation: City contends that there is only speculation, and no
evidence, that Plaintiff fell after tripping on the lip of the V-gutter.
Plaintiff has the
burden of proof on each element of her claim, including causation.
“The plaintiff
must introduce evidence which affords a reasonable basis for the conclusion
that it is more likely than not that the conduct of the defendant was a cause
in fact of the result. A mere possibility of such causation is no enough; and
when the matter remains one of pure speculation or conjecture, or the probabilities
are at best evenly balanced, it becomes the duty of the court to direct a
verdict for the defendant.”
(Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.) Causation must be
established by nonspeculative evidence. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 774.)
As the Second
District Court of Appeal recently reaffirmed, however, “A slip-and-fall
plaintiff need not remember her fall to recover damages provided the evidence
gives rise to a reasonable and probable inference that the defendant’s
negligence was a substantial contributing factor.” (Kaney v. Custance (2022)
74 Cal.App.5th 201, 217; see also, e.g., Burdette v. Rollesfon Construction
Co. (1959) 52 Cal.2d 720, 723.) Circumstantial evidence is evidence, and
such evidence, and the inferences that may be drawn from the evidence, may be
sufficient in certain cases to defeat a motion for summary judgment. (See Kaney,
supra, 74 Cal.App.5th at pp. 219-221 [citing cases]; 3 Weil & Brown,
California Practice Guide: Civil Procedure Before Trial [The Rutter Group 2023]
¶ 10:272.1.)
This is such a case: there is sufficient circumstantial
evidence in the record here to support a reasonable inference of causation. That
evidence includes the facts in the record regarding where Plaintiff was found immediately
after the accident. Ms. Smith Grunfeld and Mr. Benson both saw Plaintiff’s body lying on the
ground, perpendicular to the alleyway, with her head on the East side. (DSUMF,
No. 2; PSAMF, Nos. 12, 17-18.) Her head was several feet to the East of the V-gutter,
and her feet were in or just to the West of the V-gutter. (Smith Grunfeld
Decl., ¶¶ 8, 10-11 & Exh. 1; Benson Decl., ¶¶ 7, 10-11 & Exh. 1.) The
photograph offered by City as part of its evidence, Exhibit F, is consistent
with these accounts, showing Plaintiff’s head to the East of the V-gutter and
her feet in the V-gutter. (Contreras Decl., ¶ 4 & Exh. F.) Of course, it is
theoretically possible that at the time that Plaintiff approached the dangerous
condition, Plaintiff tripped over her own feet or stepped on her shoe lace, or
that something else causes the fall, but a finder of fact could, on this
record, draw a reasonable inference, based on the evidence, that she fell after
tripping on the lip of the V-gutter.
Thus, the issue of causation cannot be decided as a matter of law in this
case. There are triable issues that must be presented to the trier of fact.
Conclusion
City’s motion for
summary judgment is denied.
Moving party to
give notice.