2012-00130538-CU-PO

Sandra Timmerman vs. Oak Creek Apartments

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Dziesinski, Kenneth L.

Defendants VIF/Lyon Oak Creek, LLC and Lyon Management Group, Inc. (collectively
“Defendants”) motion for summary judgment is ruled upon as follows.

Defendants’ request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

This action arises out of a slip and fall on a dirt path in front of Plaintiff’s apartment complex. Plaintiff took the dirt path rather than the sidewalk because water and mud
collects at the juncture of the sidewalk making it difficult to cross. Plaintiff fell when
she stepped into a patch of moss on the path, her foot sunk and she lost her balance.
She alleges causes of action for premises liability, negligence, and breach of warranty
of habitability.

Defendants move for summary judgment on the grounds that they did not owe Plaintiff
a duty of care because she assumed the risk by walking on the dirt path. Defendants
also move for summary judgment on the grounds that they had no notice that there
may have been a hazard at the location where Plaintiff fell.

Primary Assumption of Risk

“The doctrine of assumption of risk applies not only to sports, but to other activities
involving an inherent risk of injury to voluntary participants . . . where the risk cannot
be eliminated without altering the fundamental nature of the activity. ‘[T]he question
whether the defendant owed a legal duty to protect the plaintiff from a particular risk of
harm does not turn on the reasonableness or unreasonableness of the plaintiff’s
conduct, but rather on the nature of the activity or sport in which the defendant is
engaged and the relationship of the defendant and the plaintiff to that activity or
sport.’” (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658 [quoting
Knight v. Jewett (1992) 3 Cal. 4th 296, 309].)

The Court is not convinced that the primary assumption of risk doctrine applies here.
The cases upon which Defendants rely are inapposite and do not support their
position.

In Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 653, plaintiff was
attending the Burning Man festival and approached a 60-foot tall wood sculpture that
was set ablaze. Plaintiff walked into an area of low flames in order to throw a
photograph of his friend into the fire. As he took a few more steps forward, he tripped
and fell into the fire twice. The Court of Appeal held that the doctrine of primary
assumption of risk applied. Plaintiff

deliberately, and with awareness of specific risks inherent in the activity,
nonetheless chose to engage in an activity similar to that engaged in by
a firefighter. . . . Once much of the material had burned, and the
conflagration had subsided but was still actively burning, Beninati and
others walked into the fire. At that point, the risk of stumbling on buried
fire debris, including the cables which necessarily had collapsed along
with the sculpture, was an obvious and inherent one. Thus, the risk of
falling and being burned by the flames or hot ash was inherent, obvious,
and necessary to the event, and Beninati assumed such risk.

(Id. at 658-59.)

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In Calhoon v. Lewis (2000) 81 Cal.App.4 108, plaintiff was injured while
skateboarding on his friend’s driveway. Plaintiff fell into a planter and was injured on a
metal pipe inside the planter. The court agreed that primary assumption of risk
applied. The court first noted that skate boarding is the type of activity covered by the
primary assumption of risk doctrine because it “is done for enjoyment or thrill, requires
physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Id. at 115.) The court further explained that “imposing a duty
on residential owners to make property safe and guard against injuries to those
voluntarily participating in the sport of skateboarding would change the nature of
skateboarding.” (Id. at 117.)

In Nunez v. R’Bibo (1989) 211 Cal. App. 3d 559, 561, plaintiff was asked to trim the
branches of some of the trees in front of his customer’s house. Plaintiff borrowed his
client’s ladder, which he acknowledged was “shaky” or “loose.” At one point, Plaintiff
climbed to the step of the ladder and cut a length of the limb about 15 to 16 feet long
with a chainsaw. The branch partially severed and swung down striking the ladder.
The court found that the assumption of risk applied because: (1) he was an
experienced gardener, (2) he immediately noticed the ladder was shaky, (3) he did not
buy or borrow a sturdier ladder, and (4) he sawed off a single 15-16 foot section rather
than cut the branch into smaller and safe sections. Thus, the court stated that “any
danger inherent in the operation was obvious, not obscure or concealed.” (Id. at 563.)

In Lucas v. George .R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, plaintiffs were
migrant workers that lived in a structure made from parts of wooden pallets, tomato
stakes, cardboard, irrigation plastic and twine. Plaintiff Lucas was injured, and plaintiff
Reyes died when a fire broke out in the structure. On the night of the fire, Reyes was
reading by the light of a candle. Both Reyes and Lucas had some beer that evening.
The Court of Appeal focused on the issue of whether the non-employer landowner
owed a duty to plaintiffs based on his security contractor and foreman’s activities. With
respect to the assumption of risk, the Court of Appeal merely stated that “in light of the
Supreme Court’s recent clarification of the law regarding implied assumption of the risk
in Knight v. Jewett, supra, 3 Cal.4th 296, we find the trial court’s grant of summary
judgment on implied assumption of the risk grounds, among others, was consistent
with our finding that no duty of care may be imposed as a matter of law.” There was
no discussion or analysis regarding the assumption of risk doctrine.

Here, Defendants have not demonstrated that falling on the dirt path and breaking her
ankle was an “inherent and obvious” risk, such as walking into burning flames or hot
ash, or using the top step of an unsteady ladder. Nor have Defendants demonstrated
that the risk, if any, “cannot be eliminated without altering the fundamental nature of
the activity” or that Plaintiff’s walking on the path was an activity “done for enjoyment
or thrill, requires physical exertion as well as elements of skill, and involves a
challenge containing a potential risk of injury.”

Prior Notice

Defendants next argue that Defendants had no notice that there may have been any
hazard at the location where Plaintiff fell. Defendants’ UMF 12 states “Defendants
provided Plaintiff with a paved route from her apartment to her car, which was
maintained, clean and safe.”

Plaintiff disputes that the paved sidewalk was maintained, clean, or safe. Plaintiff’s
declaration states that the sidewalk and the parking lot have not been safely
maintained. (Declaration of Sandra Timmerman, ¶3.) About 15 to 20 feet from the
entrance to her apartment at a juncture near a playground, there is a low spot in which
water and mud from the irrigation system collect. (Id.) Plaintiff would therefore be
required to cross wet concrete in order to reach the parking lot. (Id.) Ms. Cathleen
Dowell’s declaration provides that she does not recall a time where there has been a route from Ms. Timmerman’s apartment that is assured to be safe. (Declaration of
Kathleen Dowell, ¶ 6.) The cement around Ms. Timmerman’s entrance is often
flooded. (Id.) To the right, the low spot in the sidewalk is deep enough to cover a
person’s shoes and slick with mud. (Id.) Directly in front of Ms. Timmerman’s door is a
steep muddy slope leading up another sidewalk and out to the parking lot. (Id.)

Given the above dispute, the Court finds that Plaintiff has demonstrated a triable issue
of material fact. Accordingly, the motion for summary judgment is DENIED.

Plaintiff’s objections to evidence ruled upon as follows.

Sustained: 2

Overruled: 1, 3-9

Plaintiff is admonished for filing her opposition one day late and for failing to comply
with CCP 1005(c).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.