Case Name: Madahaqueel Cardoza Orozco v. Peninsula Corridor Joint Powers Board, et al.

Case No.: 17CV305967

Motion for Summary Judgment and/or Summary Adjudication

Factual and Procedural Background

On and before August 29, 2016, defendants Peninsula Corridor Joint Powers Board (“Caltrain”) and City of San Jose (“City”) and their employees owned and/or controlled and/or maintained a public bathroom and/or the adjoining property on or near 65 Cahill Street in San Jose. (Complaint, ¶9.) On August 29, 2016, the floor inside, outside, around, and near said bathroom contained pooling water, which created a dangerous and unsafe condition. (Complaint, ¶10.) On August 29, 2016, as plaintiff Madahaqueel Cardoza Orozco (“Plaintiff”) walked into said bathroom she slipped on the pooling water left on the floor and fell to the ground, causing serious bodily injury and harm. (Complaint, ¶12.) Defendants carelessly and/or negligently used, controlled, maintained, and/or inspected the bathroom and/or the floor where Plaintiff was injured, so as to permit pooling water on the floor which was accessible to the public. (Complaint, ¶13.)

On February 3, 2017, Plaintiff filed a complaint against defendants Caltrain and City asserting causes of action for:

(1) Negligence [versus Does 1 – 25]
(2) Dangerous Condition of Public Property Pursuant to Government Code section 835 [versus Caltrain, City, and Does 26 – 50]

On February 23, 2017, Plaintiff dismissed the complaint as to defendant City.

On March 9, 2017, defendant Caltrain filed its answer to Plaintiff’s complaint.

On December 19, 2017, Plaintiff amended the complaint to substitute defendant Transitamerica Services, Inc. (“TSI”) for Doe defendant number one.

On March 29, 2018, defendant TSI filed an answer to Plaintiff’s complaint.

On July 1, 2019, defendants TSI and Caltrain filed the motion now before the court, a motion for summary judgment/ adjudication.

I. Defendant TSI’s motion for summary judgment/ adjudication is DENIED.

In moving for summary judgment/ adjudication, defendants TSI and Caltrain believe, “Plaintiff raises two causes of action in negligence.” However, upon review of the complaint, Plaintiff’s first cause of action is for negligence and is directed against defendant TSI. Plaintiff’s second cause of action is for dangerous condition of public property pursuant to Government Code section 835. Since there are two distinct causes of action asserted, the court will address the motion as though it were brought by each defendant separately.

As against defendant TSI, Plaintiff’s first cause of action is for negligence. “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.).) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

A. Duty.

Defendant TSI begins by arguing that it did not owe Plaintiff a duty under the circumstances because the pool of water was not only open and obvious, but Plaintiff testified that she actually observed the pool of water prior to using the restroom. Defendant TSI refers to CACI, No. 1004 to support the assertion that, “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.” However, CACI, No. 1004 actually states:

If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the [owner/lessor/occupier/one who controls the property] does not have to warn others about the dangerous condition.

However, the [owner/lessor/occupier/one who controls the property] still must use reasonable care to protect against the risk of harm if it is foreseeable that the condition may cause injury to someone who because of necessity encounters the condition.

The actual language does not support defendant TSI’s assertion that an open and obvious danger absolves a landowner of a further duty to remedy the condition in every situation. This concept is explained by the court in Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447:

Foreseeability of harm is typically absent when a dangerous condition is open and obvious. (Osborn, supra, 224 Cal.App.3d 104 at pp. 114-121, 273 Cal.Rptr. 457.) “Generally, 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.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, 9 Cal.Rptr.2d 124.) In that situation, owners and possessors of land are entitled to assume others will “perceive the obvious” and take action to avoid the dangerous condition. (Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408, 319 P.2d 418.)

An exception to this general rule exists when “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).” (Osborn, supra, 224 Cal.App.3d at p. 122, 273 Cal.Rptr. 457, italics omitted.) In other words, while the obviousness of the condition and its dangerousness may obviate the landowner’s duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.

Defendant TSI does not address the foreseeability that Plaintiff may nevertheless choose to encounter the condition, perhaps in recognition that the circumstances (individual needing to use the restroom) here might warrant such a conclusion. Defendant TSI has not negated its duty to remedy, as a matter of law, under the circumstances.

B. Breach.

“The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) “The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372.)

“Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” [Citation.] In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. Moreover, where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476 (Moore).)

“Although liability might easily be found where the landowner has actual knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.)

[T]he plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. [Citation.] Whether this condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. [Citation.] There are no exact time limits. Rather, each accident must be viewed in light of its own unique circumstances. [Citation.] [¶] Thus, where … there is no direct evidence of the length of time the dangerous condition existed, the plaintiff can demonstrate the store owner had constructive notice of the dangerous condition by showing that the site had not been inspected within a reasonable period of time. [Citation.] In other words, the plaintiff may raise an inference that the condition existed long enough for the owner to have discovered it. [Citation.] “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” [Citation.] Nevertheless, it is still the plaintiff who has the burden of producing evidence and who must prove that the owner had constructive notice of the hazardous condition. [Citation.]

(Moore, supra, 111 Cal.App.4th at p. 477; emphasis added.)

Defendant TSI submits evidence that it did not have actual knowledge of the puddle of water. With regard to constructive knowledge, defendant TSI submits evidence that Caltrain owns Diridon station where the incident occurred; TSI manages Diridon station; and TSI retained Frank+Grossman Landscape to provide janitorial services for the station. Frank+Grossman Landscape assigned a crew to staff the station from opening until closing. Jose Villanueva is the janitor assigned to the evening shift. On or about August 29, 2016, Mr. Villanueva’s cleaning log indicates he cleaned the bathrooms at 8:45 p.m. & 10:45 p.m. The accident happened sometime after 10:00 p.m. The station has a lot less patrons during the evening hours. TSI does not have record of anyone reporting a puddle at the women’s restroom after 8:45 p.m. but before 10:00 p.m.

In opposition, Plaintiff proffers additional evidence which merely serve to confirm that an hour and fifteen minutes elapsed from the time of the last cleaning to the time Plaintiff slipped. Plaintiff proffers additionally that there was no rain or precipitation on the day of the accident. Plaintiff also produces a witness who states that a clear liquid blended in with darker flooring making the liquid difficult to see.

Here, there is no dispute that at least one hour and fifteen minutes passed between the time the area was last cleaned and the time Plaintiff fell. TSI’s own evidence is that there is less foot traffic at the time the incident occurred and that cleaning is performed at a two-hour interval. There is at least an inference that the water existed for one hour and fifteen minutes and, as the authorities above indicate, it is inherently a question of fact whether such a condition existed long enough for a reasonably prudent person to have discovered it.

Consequently, defendant TSI’s motion for summary judgment and/or summary adjudication is DENIED.

II. Defendant Caltrain’s motion for summary judgment/ adjudication is DENIED.

A. Dangerous condition of public property.

Caltrain is alleged to be a public entity. (Complaint, ¶3.) The second cause of action against Caltrain is not for negligence, but for dangerous condition of public property pursuant to Government Code section 835. “A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 citing Gov. Code, §835, subd. (b).) Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. To establish liability under Government Code section 835, the following essential elements must be proved:

(1) The public property was in a dangerous condition at the time of the injury;
(2) The injury to the plaintiff was proximately caused by the dangerous condition;
(3) The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and
(4) Either:
(a) The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
(b) The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

(Gov. Code, §835; emphasis added; see also 2 VanAlstyne, California Government Tort Liability Practice (4th ed. 2006) §12.5, pp. 795 – 796; see also CACI, No. 1100.)

B. Notice.

As it relates to defendant Caltrain, the same arguments are advanced as actual or constructive notice are, again, at issue. Defendant Caltrain argues, essentially, that it did not have actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

Defendant Caltrain submits evidence that it did not have actual knowledge of the puddle of water. With regard to constructive knowledge, defendant submits evidence that Caltrain owns Diridon station where the incident occurred; TSI manages Diridon station; and TSI retained Frank+Grossman Landscape to provide janitorial services for the station. Frank+Grossman Landscape assigned a crew to staff the station from opening until closing. Jose Villanueva is the janitor assigned to the evening shift. On or about August 29, 2016, Mr. Villanueva’s cleaning log indicates he cleaned the bathrooms at 8:45 p.m. & 10:45 p.m. The accident happened sometime after 10:00 p.m. The station has a lot less patrons during the evening hours. TSI does not have record of anyone reporting a puddle at the women’s restroom after 8:45 p.m. but before 10:00 p.m.

City would be deemed to have constructive knowledge of a dangerous condition if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code, §835.2, subd. (b).) “On the issue of due care, admissible evidence includes … Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.” (Gov. Code, §835.2, subd. (b)(1).) Admissible evidence on the issue of due care also includes, “Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Gov. Code, §835.2, subd. (b)(2).)

Caltrain’s evidence does not address what measures were taken to inspect other than to say that the janitor cleaned at 8:45 pm and 10:45 pm. There is no evidence with regard to the frequency of cleaning or inspection prior to or subsequent to those times or the practicability and costs of inspection. While Caltrain notes that the station has a lot less patrons during the evening hours, such a statement is entirely ambiguous without any objective point of reference. Simply put, Caltrain has not proffered sufficient evidence to meet its initial burden of demonstrating that it did not have actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

Moreover, as explained above, a plaintiff must prove either (a) a negligent or wrongful act or omission or (b) actual or constructive notice. (See Gov. Code, § 835 (emphasis added); see also Metcalf v. County of San Joaquin (2008) 42 Cal. 4th 1121, 1130.) Where this element is written in the alternative, a defendant moving for summary judgment would have to demonstrate that plaintiff cannot establish either. Thus, Caltrain would not be entitled to summary judgment simply by demonstrating a lack of notice.

Consequently, defendant Caltrain’s motion for summary judgment and/or summary adjudication is DENIED.