Case Name: Andrea M. Lepley, et al. v. Mary Margaret O’Neill, et al.
Case No.: 2013-1-CV-239549

Currently before the Court is defendant Mary Margaret O’Neill’s (“O’Neill”) motion for summary judgment of the first amended complaint (“FAC”) of plaintiffs Andrea M. Lepley and Neil D. Lepley (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for negligence and premises liability. In the FAC, Plaintiffs allege the following: On September 30, 2011, Helen Lepley (the “Decedent”), an 83-year-old woman ambulating with a cane, visited O’Neill’s office for a medical appointment. (FAC, ¶ 11.) After her medical examination was completed, the Decedent walked back towards the reception area where she tripped and fell on a rug. (FAC, ¶ 12.) As a result, the Decedent suffered serious injuries which contributed to her death. (FAC, ¶ 26.) The rug was hazardous to persons who have difficulty walking, and the placement of the rug violated applicable safety codes. (FAC, ¶ 13.) The FAC asserts two causes of action for premises liability and negligence against O’Neill and defendants Mary Margaret O’Neill M.D., Inc. dba Cedar Ob/Gyn (“Cedar”), and Kay Thanawala (“Thanawala”).

On March 15, 2016, O’Neill filed the instant motion for summary judgment. Plaintiffs filed their opposition on May 24, 2016. On June 2, 2016, O’Neill filed her reply.

II. Summary of Evidence Submitted

A. O’Neill’s Evidence

In support of her motion, O’Neill presents the following relevant evidence: At her deposition, Stephanie Lepley testified that the Decedent noticeably shuffled her feet while walking, she accompanied the Decedent to her doctor’s appointment with O’Neill, and she told the Decedent to be careful of tripping on the rug at issue. (O’Neill’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 10, 12, 20.) In turn, O’Neill testified at her deposition that the Decedent refused any assistance, and no other patient had fallen at this location in the last ten years. (O’Neill’s UMF Nos. 21-22.) In addition, O’Neill’s lease with Cedar contains a provision stating that “[O’Neill] and [Cedar] release each other from any liability to the other for any property loss, property damage or personal injury to the extent covered by insurance carried by the party suffering the loss, damage or injury.” (O’Neill’s UMF No. 27.)

B. Plaintiffs’ Evidence

In opposition to the motion, Plaintiffs provide the following relevant evidence: The rug placed on the premises was one-half of an inch thick and violated several provisions of the Building Code and the Americans with Disabilities Act (the “ADA”) requiring the beveling and fastening of carpets. (Plaintiffs’ UMF No. 5.) In addition, O’Neill removed the rug and threw it away several months after the incident. (Plaintiffs’ UMF No. 7.)

III. Evidentiary Objections

Plaintiffs filed several objections to the evidence presented in support of O’Neill’s motion. The objections are not material to the disposition of the motion and, therefore, no ruling is required. (See Code Civ. Proc., § 437c, subd. (q) [stating that “[i]n granting or denying a motion for summary judgment or summary adjudication the court need rule only on those objections to evidence it deems material to its disposition of the motion”].)

O’Neill filed several objections to the evidence presented in opposition to the motion. These objections do not comply with the California Rules of Court because she did not submit a proposed order. (See Cal. Rules of Court, rule 3.1354 (c).) Accordingly, O’Neill is not entitled to a ruling on her objections. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [finding that a court has no obligation to rule on written objections that do not comply with California Rules of Court, rule 3.1354].)

IV. Discussion

O’Neill contends that her motion should be granted on three bases: (1) she is not responsible for the Decedent’s injuries pursuant to the terms of her lease with Cedar; (2) it was not foreseeable that the Decedent would trip on the rug at issue; and (3) the rug constituted a minor or trivial defect.

A. Lease Agreement

O’Neill asserts that her lease with Cedar releases her from all liability in connection with this incident. This argument lacks merit. As an initial matter, the terms of the lease do not, in fact, release O’Neill from all liability for personal injury occurring on the premises. Instead, it merely provides that O’Neill and Cedar “release each other from any liability to the other for any … personal injury to the extent covered by insurance carried by the party suffering the loss, damage or injury.” (George Decl., Ex. B, p. 3, § 12(C), emphasis added.) Since the lease does not purport to release O’Neill from any liability to third parties such as Plaintiffs, the release does not extinguish any obligation owed to them. In any event, even if Cedar agreed to release O’Neill from liability for all future personal injury occurring at her premises, the release would be unenforceable against Plaintiffs. A release will extinguish an obligation only if it is given by the injured party. (Civ. Code, § 1541[stating that “[a]n obligation is extinguished by a release therefrom given to the debtor by the creditor, upon a new consideration, or in writing, with or without new consideration”].) Since O’Neill fails to submit evidence indicating that Plaintiffs authorized Cedar to release her from liability, the release does not extinguish any liability O’Neill owes to Plaintiffs. Accordingly, summary judgment is not warranted on this basis.

B. Foreseeability

O’Neill contends that she had no duty to warn or guard against the danger posed by the rug because it was obvious and the danger to the Decedent was otherwise unforeseeable.

“The obvious nature of a danger is not, in and of itself, sufficient to establish that the owner of the premises on which the danger is located is not liable for injuries caused thereby….” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 119.) Instead, “[t]he modern and controlling law on this subject is that ‘although the obviousness of a danger may obviate the duty to warn of its existence, 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 ….’ [Citation.]” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.)

O’Neill submits evidence that Stephanie Lepley made Decedent aware of the danger the rug posed. (O’Neill’s UMF No. 20.) As such, O’Neill establishes that the danger posed by the rug was obvious. However, O’Neill fails to demonstrate that it is not foreseeable that the rug may cause injury despite the fact that it is obvious. (See Martinez, supra, 121 CalApp.4th at p. 1184.) In this respect, the only evidence she submits is that absence of other prior accidents in the last ten years. (O’Neill’s UMF No. 21.) This evidence is insufficient to demonstrate lack foreseeability because “[t]he mere fact that a particular kind of an accident has not happened before does not … show that such accident is one which might not reasonably have been anticipated” and “the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 47; see also Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 31-32 [finding that a defendant could not meet its initial burden on summary judgment based on the absence of prior accidents].) Accordingly, summary judgment is not warranted on this basis.

C. Trivial Defect

O’Neill claims that the motion for summary judgment should be granted because the rug at issue constitutes a trivial defect in the property.

1. Legal Standards

“It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. [Citation.] Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but an aspect of duty that plaintiff must plead and prove. The ‘trivial defect defense’ is available to private, nongovernmental landowners. [Citation.]” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

To determine whether an alleged defect is trivial, “[f]irst, the court reviews the evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.)

2. O’Neill’s Burden

Absent any aggravating factors, a defect in a walkway less than one and one-half inches is considered trivial as a matter of law. (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367.) Here, it is undisputed that the rug at issue was one-half of an inch thick. (Puente-Peters Decl., ¶ 9(E).) In addition, O’Neill submits evidence that no aggravating circumstances rendered the defect more dangerous than its depth would indicate. In this respect, Stephanie Lepley pointed out the rug to the Decedent and the Decedent successfully navigated the rug on her way to the examination room. (O’Neill’s UMF Nos. 16, 18, 20.) As such, O’Neill meets her initial burden of production to make a prima facie showing that the rug constituted a trivial defect. Accordingly, the burden shifts to Plaintiffs to establish a triable issue of material fact.

3. Plaintiffs’ Burden

In opposition, Plaintiffs argue that the rug constituted a dangerous condition on two bases: (1) its placement violated the ADA and the Building Code; and (2) O’Neill’s destruction of the rug creates an inference that it was hazardous.

a. Violation of the ADA and the Building Code

Plaintiffs contend that the rug at issue violated several sections of the Building Code and the ADA Accessibility Guidelines (“ADAAG”) because it was not affixed to the floor and lacked beveled edges or trim. These sections, however, are inapplicable because they concern carpets rather than mats or rugs. (See ADAAG, § 4.5.3 [stating that if carpet is used on a ground or floor surface, then it shall be securely attached and exposed edges shall be fastened to floor surfaces, have trim along the entire length, and shall be beveled; Building Code, § 11B-302.2 [same]; see also Wilson v. Pier 1 Imports (US), Inc. (E.D. Cal. 2006) 439 F.Supp.2d 1054, 1073 [finding that ADA Accessibility Guidelines section 4.5.3 only concerns carpeting, not furnishings such as rugs or floor mats; White v. Divine Investments, Inc. (E.D. Cal., Oct. 7, 2005, No. CIV.S-04-0206 FCD/DA) 2005 WL 2491543, at *6 [same].) Accordingly, Plaintiffs fail to submit evidence indicating that the rug’s lack of fastening or beveling violated the ADA or the Building Code.

b. Destruction of the Rug

Plaintiffs claim that the destruction of the subject rug creates a triable issue of material fact as to whether the rug was dangerous.

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. [D]estruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction. In order for an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed. In addition, the party seeking the benefit of an inference from spoliation must demonstrate first that the records were destroyed with a culpable state of mind (i.e. where, for example, the records were destroyed knowingly, even if without intent to violate [a] regulation [requiring their retention], or negligently). Second, a party must show that the destroyed records were relevant to the party’s claim or defense.” (Reeves v. MV Transp., Inc. (2010) 186 Cal.App.4th 666, 681-682.)

Here, Plaintiffs submit evidence indicating that O’Neill threw away the rug in question a couple of months after the incident. (Plaintiffs’ UMF No. 7.) Plaintiffs, however, fail to present evidence indicating that she had an obligation at that time to preserve the rug. In this respect, they do not provide evidence indicating that O’Neill had either a statutory or contractual duty to preserve this evidence or that litigation concerning the incident was probable. (See Reeves, supra, 186 Cal.App.4th at p. 682 [finding spoliation of evidence based on statutory requirement for the preservation of government records]; Coprich v. Sup. Ct. (2000) 80 Cal.App.4th 1081, 1092 [providing that a contractual obligation or promissory estoppel could create a duty to preserve evidence]; In re Napster, Inc. Copyright Litigation (N.D. Cal. 2006) 462 F.Supp.2d 1060, 1068 [stating that in federal court the duty to preserve evidence attaches when future litigation becomes probable rather than a mere possibility].) Therefore, Plaintiffs fail to establish that O’Neill’s destruction of the rug constitute spoliation of evidence.

In any event, “spoliation of evidence alone does not necessarily create a triable issue. In addition to spoliation, there must be some (not insubstantial) evidence for the plaintiff’s cause of action [to] allow the plaintiff to survive summary judgment. (Reeves, supra, 186 Cal.App.4th at p. 682.) Since Plaintiffs provide no additional evidence establishing that the subject rug constituted a dangerous condition, they fail to demonstrate a triable issue of material fact.

D. Conclusion

In light of the foregoing, O’Neill’s motion for summary judgment is GRANTED.