Case Number: BC612261 Hearing Date: April 05, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Joseph Salatino,

Plaintiff,

v.

Target Corporation, et al.,

Defendants.

Case No.: BC612261

Hearing Date: April 5, 2018

[TENTATIVE] order RE:

DEFENDANT’S motion for summary judgment

BACKGROUND

Plaintiff Joseph Salatino (“Plaintiff”) alleges that on September 27, 2015, Plaintiff suffered personal injuries when his motorized scooter flipped over as a result of negotiating a sloped sidewalk[1] on the property of defendant Target Corporation (“Defendant”). Specifically, Plaintiff contends that that the sloped sidewalk was an unsafe condition because it was too steep for the scooter to safely negotiate, and the sloped sidewalk was not in compliance with the California Building Code. Mr. Salatino died on March 7, 2017, and Marylin Salatino is continuing this action on behalf of Mr. Salatino as his successor in interest.

Plaintiff brings a cause of action for Premises Liability against Defendant.

Evidentiary Objections

Plaintiff’s Objections to the Declaration of Robert Grundstrom

Plaintiff made three objections to the Grundstrom Declaration. Each objection was on the same grounds: that Mr. Grundstrom had no evidentiary support for his assertions. All three objections are overruled. Mr. Grundstrom makes several statements in the declaration about whether the sloping sidewalk was in compliance with the California Building Codes and that the construction drawings submitted to the City of Redondo Beach included the sloped sidewalk design and were approved for construction by the City. Mr. Grundstrom is a Director of Construction for Defendant and states that he is familiar with the subject Target store. This position shows that Mr. Grundstrom would be familiar with the building plans and construction of the subject store. Therefore, he is testifying to his personal knowledge of the building plans and construction of the subject store. In addition, even if the objections were sustained, it would not change the outcome of the Court’s analysis of this motion.

Defendant’s Objections to the Declaration of Richard Grossman

Defendant objects to the entirety of Mr. Grossman’s testimony on the ground that he is not qualified to provide an opinion as to whether the subject Target store was in compliance with the California Building Code or with the Americans with Disabilities Act as it related to physical disability access. Evidence Code § 720 defines what qualifies an expert witness: “(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” Defendant points out that Mr. Grossman’s qualifications relate to the design, development, and manufacture of sophisticated mechanical and thermodynamic systems as well as the application of Safety Engineering to such systems.

The objection to the entire declaration is overruled. Mr. Grossman does not opine as to the whether the sloped sidewalk was in compliance with ADA standards. The Court finds that the opinions Mr. Grossman provides are based on basic engineering principles, such as whether the steepness of the sloped sidewalk was disguised or whether the sidewalk was inclined at an angle that would be dangerous for persons such as Plaintiff to traverse with a scooter. (Grossman Decl., at ¶¶ 9, 10.) These conclusions do not require an in-depth knowledge of the building code or any other specialized work experience. Further, Defendant’s arguments related to the expertise level of Mr. Grossman go to the weight of his testimony — not its admissibility — which is not appropriately assessed by the Court during a motion for summary judgment.

Defendant also objects to individual sections of Mr. Grossman’s declaration. Below are the Court’s rulings as to each objection:

· Objection 2: Sustained on hearsay grounds. In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that experts may not relay case-specific facts that would otherwise be inadmissible hearsay. (at 679.) The statements in this paragraph constitute case-specific facts.

· Objection 3: Sustained based on lack of foundation and speculation as to “As a handicapped person, more likely than not, he knew these grooves indicated that the associated incline was safe for use by handicapped pedestrians. Moreover, since he had owned a mobility scooter for at least two years, it’s likely that he had driven his scooter up and down curb ramps on many occasions without incident.” Overruled as to the balance of paragraph 9 as Mr. Grossman is merely applying his specialized knowledge and forming conclusions with the facts from the case, as derived from the materials he has reviewed.

· Objection 4: Overruled. Mr. Grossman as an expert in engineering is qualified to make this conclusion.

· Objection 5: Overruled. Mr. Grossman is giving his opinion about what the red paint indicates and is not attempting to reach into the mind of any person.

· Objection 6: Overruled. Mr. Grossman is giving his opinion as to a possibility that Mr. Blackseth overlooked. Mr. Grossman is merely providing an alternative interpretation from the facts asserted by Mr. Blackseth. There is no improper speculation.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) 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.)

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 that cause of action or a defense thereto.

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.)

Facts

Plaintiff’s response to the separate statement of facts indicates that most of the facts are “disputed.” However, the “disputes” arise from whether the sloping sidewalk was a “ramp” or a “rolled curb.” The parties do not dispute the basic events that occurred on September 27, 2015.

Plaintiff arrived at the subject Target store and parked in one of the disabled parking stalls. (Fact 3.) The car was parked in a space that was adjacent to the sloped sidewalk, and the sloping section of the sidewalk is marked with red paint. (Pl. Opp., Exh. 3; see also Exh. 2.) On the other side of the parking space, there is a rectangle marked with blue paint and cross hatchings. (Id. at Exh. 3.) This blue rectangle is provided as the handicapped accessible route to the walkway and building entrance. (Fact 10.) Plaintiff exited his car and removed his motorized scooter from the back of the car. (Fact 4.) Then Plaintiff attempted to drive his scooter up the sloping sidewalk to approach the store. (Ibid.) While negotiating the slope, the Plaintiff’s scooter flipped over, which caused him injury. (Fact 1.)

DISCUSSION

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Defendant moves for summary judgment on the basis that (1) the sloping sidewalk was not a dangerous condition because it was compliant with the California Building Code; and (2) the sloping sidewalk was an open and obvious condition. Each of these arguments relate to the duty of care owed by Defendant to Plaintiff.

Existence of Dangerous Condition

Defendant argues that Plaintiff cannot establish that there was any dangerous condition that existed on its premises. First, Defendant relies on the Grundstrom Declaration. Mr. Grundstrom declares that Defendant maintains the subject sloping sidewalks for easier drainage of water and to permit pedestrians to more easily traverse the vertical steps with a shopping cart. (Grundstrom Decl., at ¶ 3.) He also declares that “rolled curbs” such as those on the subject property comply with California Building Codes and Design standards, and that the City of Redondo Beach approved the permits and construction for the store based on the designs submitted, which included the “rolled curbs.” (Id. at ¶¶ 5, 6.)

Defendant’s argument is essentially that the sloping sidewalk was built to the standard imposed by the Building Code. The Court finds that Defendant has not met its burden on the issue of whether the sloping sidewalk was dangerous or defective. Case law is clear that compliance with applicable safety regulations does not absolve a defendant from a charge of negligence. (Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 901.) As such, Mr. Grundstrom’s declaration may be sufficient to absolve Defendant from a charge of negligence per se, but not from a charge of general negligence from premises liability. (Ibid, citation omitted.)

Defendant fails to show whether it had knowledge of the allegedly dangerous condition, including whether the sloped sidewalk may foreseeably cause injury to patrons. The Court further finds that Mr. Grundstrom’s declaration is silent as to whether the sloping sidewalk posed any sort of hazard or was defective in any other manner. Without such testimony, or other kinds of evidence concerning the condition of the sloping sidewalk, Defendant fails to uphold its initial burden, and the burden of proof never shifts to the Plaintiff.

To the extent that Defendant is arguing that Plaintiff is liable for his own injuries because Plaintiff improperly attempted to negotiate the red sloping sidewalk, Plaintiff is subject to the defense of comparative negligence, but this is not an absolute defense. (Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1259.) Almost all accidents could be avoided if the person who was injured had perceived the condition as dangerous. The inquiry here is whether Defendant’s sloping sidewalk created an unreasonable risk of harm to those trying to traverse it in similar conditions of the Plaintiff. Therefore, any alleged misuse by Plaintiff does not prevent Plaintiff from being able to meet his burden at trial.

Open and Obvious Nature

Defendant also contends that it did not owe a duty to Plaintiff because the danger of the sloped sidewalk was open and obvious to the Plaintiff, and he chose to negotiate the sloped sidewalk instead of using the provided handicapped accessible walk way. First, the Court notes that the availability of the handicapped accessible walkway has no bearing on whether the sloped sidewalk was dangerous for Plaintiff to traverse. Alternate paths that Plaintiff could have taken constitute evidence of comparative fault, which, as stated above, does not absolve Defendant of liability in this motion for summary judgment.

Second, even if a condition is open and obvious, that does not relieve the Defendant’s duty in all situations. The fact that a hazard is open and obvious does not relieve a landowner of all possible duty, or breach of duty, with respect to it. “The 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, . . . there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.” (Martinez v. Chippewa Enters., Inc. (2004) 121 Cal.App.4th 1179, 1184 [quotation marks and emphasis omitted; Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [stating the obvious danger exception is in reality a recharacterization of the “assumption of the risk” doctrine, which has now been merged with comparative negligence and may relieve a property owner of a duty to warn, but does not absolve him of the duty to remedy the condition].)

The California Supreme Court succinctly stated the law in regard to a Defendant’s duty when a danger is obvious in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659. In general, “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. [Citation] However, this is not true in all cases. ‘It is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.’ ” (37 Cal.4th at 673, internal citations omitted.) In support of this conclusion the Court then cited to the Second Restatement of Torts § 343A which states that a possessor of land is liable for obvious danger if “the possessor should anticipate the harm despite such . . . obviousness.” (Ibid.)

Here, Defendant does not provide sufficient evidence to show that the condition was open and obviously dangerous. Defendant provides the Declaration of Kim Blackseth, who is an expert in compliance with the Americans with Disabilities Act as well as a Certified Access Specialist with the State of California. (Blackseth Decl., at ¶ 3.) However, this declaration focuses on the fact that the Plaintiff should have used the ADA compliant access system rather than the sloped sidewalk entrance. (Id. at ¶¶10-11.) The only evidence Defendant provides relating to the obviousness of the danger of the sloped sidewalk is Mr. Blackseth’s declaration that “[t]he rolled curb Plaintiff attempted to negotiate with his scooter was clearly painted red, and not the obvious route intended and required for disabled access.” (Id. at ¶ 12.) This evidence is insufficient to support a claim that the danger was so obvious that a person, such as Plaintiff, could reasonably be expected to see it and avoid it as a matter of law.

Accordingly, the Court finds that the Defendant has failed to meet its burden to establish that the sloped sidewalk was an obvious danger. In addition, Defendant provides no evidence or argument concerning the foreseeability that the sloping sidewalk could cause injury. Defendant has not demonstrated that Plaintiff’s conduct was an unforeseeable use of the sloped sidewalk. In fact, Defendant’s evidence shows the contrary. Defendant’s evidence shows that the purpose of the “rolled curb” is to allow shopping carts to easily roll from the sidewalk to the parking lot. (Grundstrom Decl., at ¶ 3.) This evidence indicates that the sloped sidewalk was intended to be used by some wheeled devices. Nothing in the record indicates that Defendant warned persons to wheel only shopping carts on the sloped area and not to use any other wheeled devices in that area. Therefore, Defendant has failed to show that Plaintiff’s actions on the purportedly obvious dangerous condition were not foreseeable.

Finally, even if Defendant did meet its burden to show that the danger was obvious, Plaintiff has provided sufficient evidence to show that the obviousness of the condition is a triable issue of material fact. Plaintiff’s expert states that from Plaintiff’s perspective in “approaching the ramp from the side, it would have been difficult for him to see that the involved incline was steeper than the ramps he had previously encountered . . . . Moreover, at the base of the ramp, the red paint extended the incline disguising the steepness of the ramp.” (Grossman Decl., at ¶ 9.) This statement demonstrates that the obviousness of the danger is a factual dispute.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied because Defendant has not met its burden in providing evidence with respect to issues of duty as stated above.

Defendant is ordered to provide notice of this motion.

DATED: April 5, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] A fiercely contested issue in this case is whether the area where this injury occurred was a “rolled curb” or a “ramp.” Defendant refers to it as a “rolled curb,” and Plaintiff refers to it as a “ramp.” As this issue seems to be a central focus of each brief, the Court declines to adopt either characterization and will refer to the incident area as a “sloped/sloping sidewalk.”