2017-00207799-CU-PO

Peg Hart vs. BJ’s Restaurants, Inc.

Nature of Proceeding: Motion for Summary Judgment

Filed By: Wilson, Mark R.

Defendant BJ’s Restaurants, Inc.’s motion for summary judgment is denied.

In this slip and fall action Plaintiff Peg Hart alleges a single claim for premises liability claiming that she suffered injuries when she slipped on a mat in a restaurant operated by Defendant.

Defendant seeks summary judgment. It is a familiar axiom that a defendant moving for summary judgment may demonstrate that the plaintiff’s cause of action has no merit and the defendant is entitled to judgment as a matter of law by showing that the plaintiff cannot establish one or more elements of the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) This showing must be supported by admissible evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (Code Civ. Proc., § 437c, subd. (b)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

Once the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations of his or her complaint but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.)

In ruling on the motion, the Court views the evidence and inferences therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) If the court concludes the evidence or inferences raise a triable issue of material fact, it must deny the motion. (Ibid.) Material facts are those that have ultimate significance to the relevant issues. (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 126.) The trial court must grant the motion if the papers show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

Defendant’s separate statement includes the following. On November 1, 2016, Plaintiff visited a BJ’s Restaurant in Elk Grove. Plaintiff had never been to a BJ’s before. She entered the restaurant through the main entrance which is the only entrance. Plaintiff was in the restaurant for a little over an hour. Plaintiff finished her meal and on the way to the exit, which was the same door through which she entered, she alleges that she tripped on a mat and fell. Plaintiff does not recall seeing the mat before she fell and did not see her foot make contact with the mat. She recalled being “propelled forward” but otherwise could not describe how she fell. Plaintiff did not recall whether her foot got stuck on something or whether the mat was raised or whether it shifted before she fell. Plaintiff did not see that any of the corners of the mate were raised and did not notice if the mat was bunched up in any manner. Plaintiff did not notice whether the mat had a “bubble” or whether a flap was out of place. Plaintiff did not recall whether it was raining outside when she fell and does not know whether the mat had any condition that caused her to fall. Plaintiff did not notice anything other than the mat which might have caused her fall. She believes she tripped over the mat because “[t]here was nothing else there to cause it.”

Defendant moves for summary judgment on the basis that Plaintiff cannot establish a dangerous or hazardous condition on Defendant’s property, that Defendant had knowledge of a hazardous condition, and that the mat caused her fall.

A premises owner 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; CACI 1000 and 1003.) “It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Whether a property owner has exercised reasonable care in discovering a dangerous condition is generally a fact question for the jury. (Id. at 1209.) “No suggestion of negligence arises from the mere happening of an accident.” (American Employer’s Ins. Co. v. Smith (1980) 105 Cal.App.3d 94, 101.) The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability. ( Hatfield v. Levy Brothers (1941) 18 Cal. 2d 798, 806; Girvetz v. Boys’ Market, Inc. (1949) 91 Cal. App. 2d 827, 829.)

Dangerous Condition

Defendant first argues that Plaintiff cannot establish that there was a dangerous or hazardous condition. “Generally, whether a given set of facts and circumstances amounts to a dangerous condition presents a question of fact. Nevertheless, that question may be decided as a matter of law if no reasonable person could conclude the property’s condition is dangerous as that term is statutorily defined. In such cases, summary judgment is proper. [T]he plaintiff has the burden to establish that the condition is one which creates a hazard to persons who foreseeably would use the property with due care.” (County of San Diego v. Superior Court (2015) 242 Cal.App.4 th 460, 460 [citations omitted].) Defendant argues that Plaintiff does not know whether there was any condition in the mat that caused her to fall and that a mat on the floor by itself is not an inherently dangerous condition.

Assuming Defendant’s evidence is sufficient to meet its burden on this issue, the Court concludes that Plaintiff met her burden to establish a triable issue of material fact. To that end, Plaintiff has produced circumstantial evidence from which a reasonable trier of fact could conclude that a dangerous condition existed. To that end, she presented evidence that she fell while walking on the mat. (Plaintiff’s Additional Undisputed Material Facts [“PAMF”] 17, 20.) Plaintiff submits evidence that Laura Davila who was with Plaintiff and walking approximately 2 or 3 feet behind Plaintiff testified that in a very short amount of time Plaintiff suddenly propelled forward into the door frame as if she were “flying.” (PAMF 6, 8.) Prior to that time the two were walking casually and slowly towards the door. (PAMF 10). Plaintiff declares that she did not lose her balance or have any issues with vertigo. (Hart Decl. ¶ 4.) She was not knocked down or bumped into by another person. (Id.) She was wearing flat rubber soled shoes with no laces that could catch or snag on the mat. (Id. ¶ 3.) Plaintiff had not ingested any alcohol or medication during dinner or the day of the fall. (Id. ¶ 4.) In addition, Ms. Davila indicated that after Plaintiff fell, the mat was out of place and there was a wrinkle in the mat approximately one foot from the edge of the mat. (PAMF 15, 16) In addition, Plaintiff testified that right before she fell she felt her right foot make contact with the mat and that it felt like she tripped on the mat but she was not sure which part of the mat her foot made contact with. (PAMF 24) Plaintiff presents evidence that Defendant’s General Manager at the restaurant and the Assistant General Manager testified that a wrinkled mat is a trip hazard and a hazardous condition. (PAMF 25, 26, 37, 38)

Here, the Court concludes that the evidence presented by Plaintiff is sufficient to create a triable issue of material fact as to whether the mat was in a dangerous condition. Again, this is generally a question of fact for the jury. The evidence presented by Plaintiff, which, if credited by the trier of fact, essentially eliminates any explanation for her fall other than that there was a wrinkle or bubble in the mat which caused her to trip. The evidence is not mere speculation but rather shows that she had no condition that would have impaired her ability to walk, was walking at a slow speed, but was propelled at a fast rate into the door frame as if she were “flying”, felt her foot contact the mat before she fell and a wrinkle in the mat was seen after she fell. The fact that Plaintiff was not able to describe the pre-fall condition of the mat does not mean she cannot show a dangerous condition especially given that she was not looking at the mat when she tripped. Further as she persuasively argues in opposition, if she had been able to describe a defective condition of the mat before her fall she could have avoided the mat. As a result, the motion on the basis that Plaintiff cannot show a dangerous or hazardous condition is denied.

Notice

Defendant next argues that there is no evidence that it had knowledge of any dangerous condition. “Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at 1205 [citations omitted].) “Where the dangerous condition is brought about by natural wear and tear, of third persons, or acts of God or by other causes which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to his invitees on his premises.” (Oldenburg v. Sears, Roebbuck & Co. (1957) 152 Cal.App.2d 733, 743 [citation omitted].) Defendant argues that there is no evidence it knew the mat was dangerous, no evidence of prior accidents involving the mat, and that Plaintiff herself did not notice anything wrong with the mat.

Assuming Defendant’s evidence is sufficient to meet its burden on this issue, the Court concludes that Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. To that end, Plaintiff presents evidence that the mats are laid on the floor by Defendant’s employees and that Defendant’s employees were aware that these mats get wrinkles in them as a result of traffic. (PAMF 33, Guajardo Depo. 60:23-61:1.) In addition, while there is a hospitality station where hostesses are located approximately 8 to 10 feet from the front entrance, there is no specific instruction for the hostesses to regularly inspect the entryway mats for bubbles or wrinkles and the general manager is not aware of any system for hostesses to make inspections. (PAMF 31, 32, 42, 43.) In addition, while the restaurant has “bussers” who conduct routine floor sweeps of the restaurants, the “bussers” are not instructed or directed to include the front entry way as part of their inspection. (PAMF 41.) Generally, the front entryway is inspected 2 to 3 times per day even though the restaurant is open from 11 AM to 10 PM on weekdays and until 1 AM on weekends. (PAMF 36, 44.) In addition, as set forth above Defendant’s employees were aware that a wrinkle in a mat was a tripping hazard. (PAMF 26, 34, 38.) Evidence of a store owner’s “failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant’s negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.” (Ortega, supra, 26 Cal.4th at 1211, citing to Bridgman v. Safeway Stores, Inc. (1960) 53 Cal. 2d 443.) A store owner must “inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Id. at 1207.) Here, as seen above, there is a triable issue of material fact that the mat constituted a dangerous condition. It necessarily follows that given the evidence presented by Plaintiff that employees placed the mats, were aware that wrinkling created a tripping hazard and that the entryways are only inspected two to three times per day, there likewise is a triable issue of material fact was to whether Defendant adequately inspected the premises and therefore whether Defendant was charged with notice. “We also conclude, however, that plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. [citation] In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist 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.” (Ortega, supra, 26 Cal.4th at 1212-1213 [emphasis added].) As a result, the motion on the basis that Plaintiff cannot show Defendant had notice of a dangerous condition is denied.

Causation

Finally, Defendant argues that Plaintiff cannot show the mat caused her to fall. Defendant argues that Plaintiff’s belief that the mat caused her fall is speculative. “A plaintiff cannot recover damages based upon speculation or even a mere possibility

that the wrongful conduct of the defendant caused the harm.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 133.) Defendant’s argument in this regard is similar to its argument that the mat was not a dangerous condition.

Assuming Defendant’s evidence is sufficient to meet its burden on this issue, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. As set forth above, Plaintiff has presented evidence which if credited by the trier of fact potentially implicates the mat as the cause of the fall. As noted, Laura Davila who accompanied Plaintiff and was walking approximately 2 or 3 feet behind Plaintiff testified that in a very short amount of time Plaintiff suddenly propelled forward into the door frame as if she were “flying.” (PAMF 6, 8.) Prior to that time the two were walking casually and slowly towards the door. (PAMF 10). The case law cited by Defendant involved a slip and fall case where a plaintiff believed that the floor was slippery but the evidence showed nothing on the floor, that the plaintiff had no problem with her footing just prior to the fall, and a witness five feet from the fall testified that the floor was not slippery. In those circumstances the plaintiff’s belief that the floor was slippery was purely speculative and insufficient to defeat summary judgment. ( Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.) But here, Plaintiff’s evidence is not mere speculation and shows that she had no condition that would have impaired her ability to walk, that she was walking at a slow speed, was propelled into the door frame as if she were “flying”, felt her foot contact the mat before she fell and that a wrinkle in the mat was seen after she fell. Accordingly, there is a triable issue of fact as to causation. The motion on the basis that Plaintiff cannot show causation is denied.

The motion for summary judgment is denied.

The Court need not address Defendant’s argument that Plaintiff cannot rely on res ipsa loquitor as Plaintiff did not make any such argument.

Plaintiff’s counsel is directed to prepare an order for the Court’s signature pursuant to CCP § 437c(g) and CRC Rule 3.1312.