Filed 1/29/20 Ziegler v. The Bay Clubs Co. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

PATRICIA ZIEGLER,

Plaintiff and Respondent,

v.

THE BAY CLUBS COMPANY, LLC, et al.,

Defendants and Appellants. B291821

(Los Angeles County

Super. Ct. No. BC638802)

APPEAL from a judgment of the Superior Court of Los Angeles County, H. Chester Horn, Judge. Affirmed.

KLINEDINST, Robert G. Harrison, Robert M. Shaughnessy, and Catherine M. Asuncion for Defendants and Appellants.

The Law Office of Herb Fox, Herb Fox; and Strickland Law Firm, William E. Strickland for Plaintiff and Respondent.

INTRODUCTION

Plaintiff and respondent Patricia Ziegler sued The Bay Clubs Company, LLC and Bay Club South Bay, LLC (collectively, “The Bay Club”). She alleged injuries resulting from tripping over a protective metal box covering electrical wires (referred to by the parties as a “wireway”) as she walked between two treadmills to get to an aisle in a gym operated by The Bay Club. Because she had signed a membership agreement containing a waiver of ordinary negligence claims, she proceeded on a negligence per se theory of liability. The jury found The Bay Club violated the California Building Code, and the violation was a substantial factor in causing Ziegler’s injuries.

The Bay Club appeals from the final judgment and the denial of its motion for new trial. Its principal contention on appeal is that the trial court erred by instructing the jury on negligence per se because Ziegler failed to present substantial evidence to support the jury instruction. We disagree, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2016, Ziegler was working out on one of a row of treadmills at the gym. After stepping off the treadmill, Ziegler walked through the space between the treadmill and the one next to it, toward an aisle in front of the row of machines. Ziegler tried to step over the wireway, but her foot got caught, causing her to fall and injure her elbow.

Ziegler argued the wireway, which ran along the floor in front of the row of treadmills, was an obstruction that violated the Building Code, and that violation was a substantial factor in causing her injuries. Before trial, The Bay Club moved to exclude testimony of Ziegler’s expert witness, Philip Rosescu, a civil engineer. Rosescu primarily works as a “forensic engineer” investigating accidents to determine causation and opine on what codes or standards were violated. The Bay Club argued he was not qualified to offer opinions about The Bay Club’s compliance with electrical and building codes. The trial court denied the motion in limine, stating “he is a highly qualified civil engineer with a great deal of experience in a wide range of areas and he’s capable of discussing minimal issues in this case.” The Bay Club does not challenge this ruling on appeal.

At trial, Rosescu testified the area in front of the wireway where Ziegler landed on her elbow was an “aisle” as defined by the Building Code, and that the area in between the treadmills was a means of egress and an “aisle-accessway,” as that term is defined by the Building Code, because it was used to gain access to the aisle. Relying on the Building Code, Rosescu further opined the means of egress and aisle-accessways must remain unobstructed, and that the placement of the wireway across the aisle-accessway between the treadmill machines was an obstruction that violated the Building Code.

Ziegler testified there was approximately two feet of clearance between the treadmills at the time of the incident, and she and other members of The Bay Club commonly used the gap between the treadmills as a path to walk to the aisle in front of the machines. Ziegler further testified that trial Exhibit 3, admitted into evidence, was an accurate photograph of the gap between the treadmills immediately after she fell. Pat Quiggle, Ziegler’s husband and a patron of The Bay Club, and Lane Livingston, another patron of The Bay Club, testified they frequently saw patrons and employees walk between the treadmills to get to the aisle in front of the machines.

As noted above, the jury found The Bay Club violated the Building Code and the violation was a substantial factor in causing Ziegler’s injuries. The jury also found Ziegler was contributorily negligent, allocating fault between The Bay Club and Ziegler at 75% and 25%, respectively. After making comparative fault adjustments, the trial court entered judgment in favor of Ziegler in the amount of $477,073.64. The trial court denied The Bay Club’s motion for a new trial, and this appeal followed.

DISCUSSION

The Bay Club contends Ziegler failed to present substantial evidence of a Building Code violation to support a jury instruction on negligence per se.

At the outset, we note a claim of instructional error is generally forfeited on appeal if the defendant fails to object to the instruction at trial. (People v. Bolin (1998) 18 Cal.4th 297, 326 (Bolin).) Here, the parties agreed to CACI 418 (Presumption of Negligence Per Se) and defense counsel told the trial judge he had no objection to Ziegler’s proposed special instruction setting forth the Building Code provisions. The trial court read these two instructions together. The Bay Club’s failure to object to these instructions at trial forfeits the issue on appeal. (Bolin, supra, 18 Cal.4th at p. 326; see also People v. Valdez (2004) 32 Cal.4th 73, 137 [claim that instruction not supported by substantial evidence forfeited by failure to object at trial].) The forfeiture is a sufficient basis to affirm the judgment.

In any event, no error occurred. “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) The court instructed the jury on certain Building Code provisions and stated “[i]f you decide that the Bay Clubs Company, LLC violated this law, and that the violation was a substantial factor in bringing about harm to Patricia Ziegler, then you must find that the Bay Company Clubs, LLC, was negligent.” The Bay Club argues Ziegler presented no evidence that the space between the treadmills constituted an “aisle-accessway” or a “means of egress” under the Building Code, thus making the negligence per se jury instruction inapplicable. The record, however, indicates otherwise.

As discussed above, Ziegler’s expert testified that the area in between the treadmills was a means of egress and an “aisle-accessway,” as that term is defined by the Building Code, because it was used to gain access to the aisle. Ziegler also presented evidence, through her testimony and testimony of other patrons of The Bay Club, that people commonly used the gap between the treadmills as a path to walk to the aisle in front of the machines, thereby implicitly arguing a space can become an “aisle-accessway” or means of egress through use. The Bay Club does not argue otherwise, and thus concedes the issue. (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 330.)

We note the purpose of the Building Code’s egress provisions is to ensure occupants have a safe means of exiting the building in the event of a fire. (Cal. Code Regs., tit. 24, § 1.1.2.) It is undisputed Ziegler had unobstructed access to an aisle directly behind the treadmill. Ziegler chose, however, to step off the side of the treadmill and walk between two treadmills toward the aisle located in front of the machines. Thus, The Bay Club was free to object to the negligence per se instruction, but did not, on the ground that the unobstructed aisle directly behind the treadmill satisfied the Building Code even though Ziegler took an alternative, obstructed path (i.e. the space between the treadmills) that may or may not constitute an aisle-accessway. And on appeal, The Bay Club does not argue that, consequently, as a matter of law, the jury could not have concluded there was a violation of the Building Code. Thus, we will not consider that argument. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.”].)

Instead, The Bay Club principally contends the negligence per se instruction was improperly given because of a supposed inconsistency in Rosescu’s testimony: Rosescu testified that at the time of his inspection (two years after the accident), the space between the treadmills was 12 to 18 inches wide, but in response to a question from a juror, he stated “‘[t]he minimum clear width for an aisle-accessway shall be 30 inches.’” It follows, according to The Bay Club, that the space between the treadmills could not possibly constitute an aisle-accessway under the Building Code because it was too narrow (i.e., fewer than 30 inches wide), and giving the negligence per se instruction therefore was improper. We reject this argument.

The Bay Club seems to concede the Building Code does not set forth any minimum width requirements for aisle-accessways in a gymnasium. The Bay Club’s own expert, Dennis Fitzgerald, testified the Building Code contains no requirements for the minimum width between treadmills. The Bay Club also acknowledges Rosescu was reading from the wrong section of the Building Code—applicable to mercantile buildings, not gymnasiums—when he stated an aisle-accessway must have a width of 30 inches. But The Bay Club did not object to Rosescu’s misstatement about the required width, nor ask the trial court to correct the jury’s understanding of the law. In fact, as noted above, The Bay Club agreed the judge should direct the jury to Rosescu’s testimony when answering the jury’s question during deliberations about whether there is a minimum width requirement for a means of egress. The Bay Club does not contend the trial judge’s response to the jury was in error. Despite these concessions, The Bay Club now argues that giving a negligence per se instruction was improper because the space between the treadmills could not be an aisle-accessway because at the time of accident it was not 30 inches wide. This is a non sequitur. Something can be an aisle-accessway or means of egress even if it does not meet the minimum width requirements. In any event, even if the jury credited Rosescu’s testimony that an aisle-accessway (even in a gymnasium) must be 30 inches in width, it could have concluded the treadmills were 30 inches apart at the time of the accident based on the photograph of the space between the treadmills, and Ziegler’s testimony that there was “approximately” two feet of clearance between the treadmills at the time of the incident. Or, it could have concluded the space was an aisle-accessway, but The Bay Club violated the Building Code by placing the treadmills too close together.

We conclude substantial evidence supported the court’s instruction on negligence per se. The jury could have rationally concluded, based on the evidence presented of people commonly using the gap between the treadmills as a path to walk to the aisle in front of the machines, that the space between the treadmills constituted an “aisle-accessway” or other “means of egress” under the Building Code, and that the wireway was an impermissible obstruction in violation of the Building Code (Cal. Code Regs., tit. 24, § 1003.6.).

Alternatively, The Bay Club argues the court erred by misstating the Building Code when reading the negligence per se jury instruction aloud to the jury (e.g. the reporter’s transcript indicates the judge said “require a capacity” v. “required capacity”; “enclosed” vs. “unenclosed”; and “aisles and access ways” vs. “aisles and aisle-accessways”). These discrepancies may have been the result of the court’s misreading of the jury instructions or an incorrect transcription by the reporter. We cannot tell. In any event, the written instructions given to the jury tracked the applicable language of the Building Code except for one word of no apparent consequence to the jury’s decision (“district” instead of “distinct”), and we presume the jurors were guided by the written form of the instruction given them. (People v. McLain (1988) 46 Cal.3d 97, 115 [presumption jury was guided by written version of instructions].)

DISPOSITION

The judgment is affirmed. Ziegler is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

WE CONCUR:

MANELLA, P. J.

WILLHITE, J.