Case Number: BC672084 Hearing Date: March 06, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

elias khalili,

Plaintiff,

v.

back to health physical therapy,

Defendant.

Case No.: BC672084

Hearing Date: March 6, 2019

[TENTATIVE] order RE:

Defendant’s MOTION FOR SUMMARY JUDGMENT

BACKGROUND

Plaintiff Elias Khalili (“Plaintiff”) slipped and fell while getting out of the shower at Defendant Back to Health Physical Therapy (“Defendant”). Plaintiff filed this action on August 11, 2017, asserting causes of action for general negligence and premises liability. Defendant now moves for summary judgment, and Plaintiff opposes the motion. The motion is granted.

LEGAL STANDARD

“[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.)

DISCUSSION

The Court grants summary judgment because there is no triable issue whether Defendant adhered to the appropriate standard of care. A property owner has 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.) Whether a property owner has a duty to prevent a particular harm and the scope of any such duty are questions of law for the court to resolve. (Id. at 36.)

Defendant relies on Plaintiff’s deposition testimony. Plaintiff testified that he does not recall seeing anything wet on the floor outside the shower before he got into the shower. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, p. 43.) He testified that he did feel anything wet on the floor before he got into the shower. (Ibid.) Plaintiff testified that he could see clearly in the shower stall area. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, p. 47.) Plaintiff testified that there was no one else in the shower stall area before he got into the shower. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, pp. 43-44.) Plaintiff testified that he fell when he stepped out of the shower because the floor was slippery. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, pp. 58, 78.)

Defendant has also proffered the deposition testimony of its owner, Ian Novotny (“Novotny”). He testified that the floor outside the shower is nonslip tile with grip tape. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit B, pp. 28, 32.) Novotny also testified that Defendant placed a wet floor sign outside the shower. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit B, p. 33.) Novotny testified that Plaintiff was the first patient of the day of the accident, and the first person to use the shower stall. (Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit B, pp. 18-19.)

Defendant’s evidence is sufficient to meet its burden to make a prima facie showing that it exercised ordinary care in the management of its premises such that Plaintiff cannot prevail on his claim for premises liability. Taken together, Defendant’s evidence is sufficient to show that Defendant took adequate precautions to ensure that the floor in its shower stall area was not unreasonably slippery, and that Plaintiff was the cause of any slippery condition of the shower stall area at the time of his accident. Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant exercised ordinary care in the management of its premises.

In opposition, Plaintiff argues that Defendant should have used a safety bar or a mat outside the shower stall to prevent accidents. While safety bars and mats are alternative measures that Defendant could have used to reduce the risk of a slip and fall accident, Plaintiff cites no authority for the proposition that Defendant was required to use a safety bar or mat rather than the nonslip tile and grip tape that Defendant used. While Defendant was required to exercise ordinary care in the management of its premises, Defendant was not required to exercise the highest possible degree of care. Plaintiff’s argument is unpersuasive.

Plaintiff also points out that he testified at deposition that he did not see a wet floor sign on the date of the accident, and that no one was present in shower stall area to help him after the accident. (See Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, pp. 43, 61.) Again, Plaintiff cites no authority for the proposition that Defendant was required to have employees in the shower stall area or to post wet floor signs in order to exercise ordinary care in the management of its premises. While Defendant could have taken extreme measures to prevent any accidents on its premises, the law only requires Defendant to exercise ordinary care. Plaintiff’s argument is insufficient to raise triable issues of material fact as to whether Defendant exercised ordinary care in the management of its premises.

Plaintiff also cites his deposition testimony, in which he stated that on one previous occasion, he told an employee of Defendant that the floor outside the shower stall was wet. (See Evidence in Support of Defendant’s Motion for Summary Judgment, Exhibit A, pp. 32.) This testimony is not pertinent, because it does not establish that Defendant knew of the allegedly dangerous condition of the floor outside the shower stall on the date of Plaintiff’s accident. Plaintiff cannot dispute that, as a result of use of the shower stall, the floor outside the shower stall will necessarily be wet on some occasions. Plaintiff has failed to raise triable issues of fact as to whether Defendant knew or should have known that the floor outside the shower stall was dangerously wet on the date of Plaintiff’s accident and failed to take reasonable measures to address that hazard.

Plaintiff attempts to rely on the “eggshell plaintiff” rule, but he mischaracterizes the rule. Plaintiff argues that because he had a stroke prior to the accident, Defendant had a heightened duty of care. Plaintiff is incorrect. Per the eggshell plaintiff rule, “When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.” (Restatement (Third) of Torts: Phys. & Emot. Harm § 31 (2010).) This rule concerns the scope of damages for which a tortfeasor may be liable. It does not expand the scope of the duty Defendant had to exercise ordinary care in the management of its premises.

In sum, the undisputed evidence demonstrates that Plaintiff dripped water on the floor when he exited the shower, and he slipped on the water. The undisputed evidence demonstrates that Defendant took ordinary precautions to guard against this issue by using nonslip tile with grip tape on the floor, and by posting a caution sign, outside the shower. Plaintiff has failed to raise triable issues of fact as to whether Defendant failed to exercise ordinary care in the management of its premises. Accordingly, Defendant’s motion for summary judgment is granted.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant is ordered to give notice, and to file a proof of service of same.

DATED: March 6, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court