Case Number: BC538522 Hearing Date: June 16, 2016 Dept: S27

COMPLAINT
Plaintiff alleges in her Complaint:
1. Premise Liability;
a. Negligence; and
b. Wilful Failure to Warn of a Dangerous Condition.

SUMMARY OF FACTS
On July 4, 2012, Shirley Munro, wanting a better vantage point to observe a fireworks display, climbed to the roof of the three-story condominium building located at 2662 East 2nd Street, Long Beach, CA 90803. She was a unit owner/resident there. The door leading to the roof was not locked and was frequently used by the residents. When Ms. Munro reached the rooftop, she sat down on a skylight which gave way immediately, and she fell three stories, landing in the lobby and suffering serious injuries.

MOTION FOR SUMMARY JUDGMENT
The moving party argues that the skylight was an open and dangerous condition that Plaintiff recognized and was aware of. Moving party cites older cases in support of their position: Boggs v. Capwell Cent. Market (1939) 136 Cal. App. 687, 690 and Hill v. Eaton & Smith (1944) 65 Cal. App. 2d 11, 14. While the cases have not been directly overruled, the state of the law has changed in the intervening years:

As explained in Beauchamp v. Los Gatos Golf Course (1969) 273 Cal. App. 2d 20, the “obvious danger” exception to a landowner’s ordinary duty of care is in the reality of characterization of the former assumption of the risk doctrine, i.e., where the condition is so apparent that the plaintiff must have realized the danger involved, he assumes the risk of injury even if the defendant was negligent. (Id., at pp. 32-33) As noted, this type of assumption of the risk has now been merged into comparative negligence. In addition, recent authority makes it clear that while a readily apparent danger may relieve the property owner of a duty to warn, it no longer necessarily absolves him of a duty to remedy the condition.
(Osborn v. Mission Ready Mix (1990) 224 Cal. App. 3d. 104, 119)

The issue of comparative negligence is an issue of fact for the jury and not a matter of law.

Moving party has not met their initial burden.

Even assuming that moving party has met their initial burden, Summary Judgment is still improper.

Plaintiff argues that technological improvements to skylights have been made since the 1940’s. There now exist skylights that substantially resemble the skylight in question, that can support up to 775 pounds (Plaintiff’s Exhibit E), which would have prevented this incident. It cannot be stated that the skylight was a dangerous condition so open and obvious as to bar recovery as a matter of law.

TIARA’S REPLY
REQUEST FOR JUDICIAL NOTICE
Defendant Tiara asks the Court to take judicial notice of two exhibits:

Defendants’ Exhibit C: Purported to be the Declaration of Brad P. Avrit P.E. in support of Plaintiff’s and Plaintiff in Intervention Everest National Insurance Company’s Opposition to Defendant Rogery and Kristen Spade’s Motion for Summary Judgment, or in the alternative, for Summary Adjudication of Issues as to Plaintiff’s Complaint, filed in the Superior Court of California, County of Ventura (Case number 56-2014-00449789-CU-PO-VTA;

Defendants’ Exhibit D: Purported to be a minute order from March 16, 2016 issued by the Superior Court of California, County of Ventura (Case number 56-2014-00449789-CU-PO-VTA).

As there are no file stamps on either document nor are they certified copies, judicial notice is not appropriate. Even if this defect was cured the Court declines to take judicial notice of another court’s determination of an expert witness’s prior declaration as it is irrelevant.

OBJECTIONS
Defendant Tiara makes 25 objections to Plaintiff’s evidence. The rulings are marked on the form provided and incorporated by reference.

Tiara relies on case law concerning railroad tracks (and the passing trains) and large trees at the bottom of ski slopes as modern examples of dangers that are open and obvious as a matter of law. The Court notes that railroad tracks and trees (and their attendant hazards) have not significantly changed since the adoption of the Comparative Fault doctrine. These cases are distinguishable from the instant case, as a skylight, made from an unknown material may or may not hold an individual’s weight.

RULING
Tiara has not met its initial burden and is not entitled to summary judgment as a matter of law. Triable issues of fact exist; Summary Judgment is denied.