What is the Trivial Defect Defense in California?

In the recent appellate decision in Fajardo v. Dailey, Salvador Fajardo had filed his negligence action against Cynthia Dailey after he tripped and fell on an asphalt patch between two adjacent sidewalk slabs in front of Dailey’s property.

The trial court granted Dailey’s motion for summary judgment, ruling the condition of the sidewalk was a trivial defect.

Because Dailey did not meet her burden on summary judgment of showing the defect was trivial as a matter of law, and because Fajardo submitted admissible evidence creating a triable issue of material fact, the appellate court reversed.

One morning in December 2018, Fajardo went for a walk in his neighborhood. Fajardo was wearing shorts and “tennies.” As he ran to reach an intersection before the traffic light turned red, he caught his foot on a lift in the sidewalk in front of Dailey’s home and fell, hitting his hands and knee on the ground.

Fajardo filed this action in August 2019, against Dailey, the City of Monrovia, and the County of Los Angeles.

In his operative, first amended complaint, he alleged causes of action against Dailey for premises liability and “negligence and property damage.”

Fajardo alleged Dailey “negligently, carelessly and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned” the property in a dangerous condition, so as to cause him to trip and fall on the sidewalk surface.

Dailey moved for summary judgment on the ground the dangerous condition that Fajardo alleged caused injury amounted to nothing more than a trivial defect.

Dailey submitted Fajardo’s deposition testimony that, after he fell, he measured the height differential with his key and described it as a little over one inch. Fajardo also testified that the weather was sunny, that he had lived nearby for 13 years, and that he had previously walked on the sidewalk in front of Dailey’s house.

Dailey also submitted the declaration of an architect, Thomas Parco, who stated the sidewalk complied with applicable codes, statutes, and regulations and presented no unreasonable safety hazard.

Parco stated that the displacement in the concrete slabs where Fajardo fell created a rise of less than one inch and that the defect was trivial. Parco opined that the black asphalt patch made the displacement clearly visible and that, because Fajardo was traveling down the slope rather than up, it was less likely someone like him would trip.

Several photographs attached to Parco’s declaration of a tape measure someone placed on the sidewalk suggested the differential was between 10/16 and 13/16 of an inch. The trial court, however, sustained Fajardo’s objections to these unauthenticated photographs and to Parco’s legal conclusion the defect was trivial.

In opposition to the motion, Fajardo disputed Parco’s measurement of the height differential and argued the height of the displacement, combined with other aggravating factors, made the sidewalk defect nontrivial.

Fajardo submitted the declaration of a forensic analyst, Eris J. Barillas, who stated that she visited the site in February 2021 and that, although the asphalt patch had been removed and replaced with concrete, she measured the height differential as approximately one and three-sixteenths inches.

Barillas opined that the sidewalk defect had a vertical height differential between one and three-sixteenths and one and one-half inches in December 2018 when Fajardo fell and that the asphalt patch was at least 11 years old.

Barillas stated low lying height differentials often go unnoticed by pedestrians and are likely to pose a significant tripping hazard.

She also stated that a photograph Fajardo took two days after his fall showed the asphalt patch was substantially defective and deteriorated and contains jagged, uneven, and irregularly shaped edges, cracks and loose pieces of asphalt. Barillas opined the asphalt patch was a tripping hazard and not a trivial defect.

The court acknowledged that the parties disputed the size of the height differential, but concluded that Fajardo’s evidence the lift was one and three-sixteenths to one and one-half inches high does not create a triable issue of material fact, considering courts have found height differentials as big as 1 1/2 inches high to be trivial.

The court also rejected Fajardo’s contention jagged edges and irregular breaks in the asphalt patch were aggravating circumstances that precluded summary judgment.

The court found the obvious and distinctive nature of the asphalt patch, rather than making the sidewalk defect more dangerous, was consistent with a determination that the condition of the sidewalk was a trivial defect. The court granted Dailey’s motion for summary judgment, and Fajardo timely appealed from the ensuing judgment.

Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property.

But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property.

The so-called “trivial defect doctrine” recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.

The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.

In limited circumstances a court may determine a walkway defect is trivial as a matter of law.

Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.  But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.

In the sidewalk-walkway context, the decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.

Although a defect’s size may be one of the most relevant factors to the court’s decision, the court also must consider all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest, including whether the walkway had any broken pieces or jagged edges.

Moreover, size alone is not determinative of whether a rut presents a dangerous condition.

Application of a strict tape measure approach to determine whether a defect is trivial as a matter of law, disregards the fact that other factors and circumstances involved in a particular case could very well result in an entirely different conclusion from one arrived at by simply measuring the size of a defect.

The court must also consider whether the circumstances surrounding the accident made the sidewalk displacement more dangerous than a one-and-one-half-inch sidewalk lift otherwise would be.

In her motion for summary judgment, the only evidence Dailey presented on the condition of the asphalt patch was Parco’s statement that a black asphalt patch at the displacement provided a distinct color contrast to the surrounding grey concrete making it clearly visible.

But neither Dailey nor Parco submitted a photograph or other evidence of the condition of the asphalt patch at the time of the accident.

Even if Dailey had met her moving burden on summary judgment, Fajardo submitted evidence creating triable issues of material fact on the height differential.

Barillas stated that, in her opinion, the displacement was one and three-sixteenths to one and one-half inches and that the width of the defect was approximately 30 inches.

And unlike Parco, Barillas provided the basis for her conclusion. She stated she visited the site after the asphalt patch was removed and replaced with concrete, was able to take height measurements, and found a height differential of approximately 1-3/16 inches.

She attached photographs of the site taken by her company the day she visited showing the height differential was between 13/16 and one and three-sixteenths inches.  Thus, there was a factual issue about the size of the defect.

Fajardo also submitted evidence creating a triable issue of material fact on whether circumstances or factors other than the height of the differential increased the danger.

Fajardo submitted the only photograph in the record that showed the asphalt patch in any detail: a black and white photograph he took approximately two days after he fell.

Although the copy quality is not the best, the dark-colored asphalt patch is clearly visible and appears to have a rough texture, an uneven surface, and a jagged edge where it meets the concrete. A few dark spots near the patch appear to be pieces of asphalt that have broken off from the patch.

Although Barillas did not provide the basis for her conclusion the height differential may have been as high as one and one-half inches at the time Fajardo fell, Dailey did not object to this portion of Barillas’s declaration.

Therefore, there was a triable issue of fact sufficient to defeat the motion.

LESSONS:

1.         Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property.

2.         A property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property.

3.         The so-called “trivial defect doctrine” recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.

4.         Size alone is not determinative of whether a rut presents a dangerous condition.

Is There a Right to Jury Trial for Claim of Fraudulent Transfer of Real Property?

Sometimes defendants against whom a money judgment is entered will try and prevent enforcement of the judgment against the defendant's real property by transferring the real property with actual or constructive intent to hinder, delay or defraud the judgment creditor.  Such a transfer will then require a new legal action under California's Uniform Voidable Transactions Act (Civil Code §§ 3439 to 3439.14).

The issue is whether there is a right to a jury trial in the Uniform Voidable Transactions Act lawsuit?

In the recent decision in Moofly Productions v. Favila, the Second District Court of Appeal affirmed the superior court’s judgment in favor of defendant and cross-complainant Sandra Favila, the executrix of the Estate of Richard Corrales (the Estate) for fraudulent transfers and other causes of action against Moofly Productions.

Following the dismissal of Moofly’s complaint, the case proceeded to trial on the Estate’s cross-complaint. The superior court found that the transfer of assets to Moofly was a fraudulent transfer designed to prevent the Estate from collecting on its judgment.

The court granted a mandatory injunction directing plaintiffs to transfer back all the assets that had previously been transferred to Moofly. The court also ordered restitution of the profits plaintiffs earned from the fraudulently transferred property, and issued a prohibitory injunction to prevent plaintiffs from any further transfers of property.

Moofly contended that the superior court erred by denying its request for a jury trial on its cause of action for fraudulent transfer. The Court of Appeal disagreed, ruling that to provide the relief sought in the cause of action, the superior court was required to apply equitable doctrines, and Moofly was therefore not entitled to a jury trial.

The California Constitution guarantees the right to a jury trial, but the right so guaranteed is the right as it existed at common law in 1850, when the Constitution was first adopted.  As a general proposition, a jury trial is a matter of right in a civil action at law, but not in equity.

The California Code of Civil Procedure also guarantees the right to a jury trial in actions for the recovery of specific, real, or personal property, with or without damages. (Code Civil Procedure § 592)

If the action involves ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—the gist of the action.

A jury trial must be granted where the gist of the action is legal, and where the action is in reality cognizable at law.

On the other hand, if the action is essentially one in equity and the relief sought depends upon the application of equitable doctrines, the parties are not entitled to a jury trial.

In most instances, courts have considered suits to reverse fraudulent transfers to be actions at equity. Where no individual money damages are sought, and where the plaintiff seeks only to rescind and to recover the fraudulently conveyed assets, the action is equitable, and a jury trial is not a matter of right.

An action to recover a fraudulent conveyance of a determinate sum of money must proceed under law because in such a case, a complete remedy is available at law, and equity will not countenance an action when complete relief may be obtained at law.

One of the key questions in any action for fraudulent transfer is whether the transferor received a reasonably equivalent value in exchange for the transfer or obligation. (Civ. Code § 3439.04(a)(2).) The evaluation of that question required considering all of the property that Moofly received, and would not have allowed separate trials for the chattels, cash, and intangibles.

Because the Estate’s cause of action for fraudulent transfer was essentially one in equity and the relief sought depended upon the application of equitable doctrines, the Appellate Court held that Moofly was not entitled to a jury trial.

LESSONS:

1.         Limit causes of action for fraudulent conveyance to the return of the transferred property to avoid the time and expense of a jury trial.

Do California Landowners Owe a Duty to Keep Invitees Safe?

A unanimous decision by the California Supreme Court answered this question, and in doing so ruled that both the trial court and court of appeal erred in their rulings.

The recent decision in Hoffman v. Young, the Supreme Court recognized that under Civil Code section 846, landowners generally owe no duty of care to keep their property safe for others who may enter or use it for recreational purposes.

There is an exception to that statutory negation of duty, however, when a landowner expressly invites someone onto the property.

The question here is whether that exception applies when the invitation is extended, not by the landowners, but by their live-at-home child who acts without the owners’ knowledge or permission.

The trial court ruled that the exception did not apply because there was no evidence the landowners personally invited the plaintiff to come onto their land.

The Court of Appeal reversed, holding that an invitation by a landowner’s live-at-home child operates to activate the exception unless the child has been prohibited from making the invitation.

Neither court interpreted the statute correctly, and a plaintiff may rely on the exception and impose liability if there is a showing that a landowner, or an agent acting on his or her behalf, extended an express invitation to come onto the property. Plaintiff did not meet that burden below.

Defendants Donald and Christina Young lived with their sons, Gunner and Dillon, on property they owned in Paso Robles. Donald also designed and built a motocross track on the land.

One day in 2014, 18-year-old Gunner invited Mikayla Hoffmann (plaintiff) to go motorcycle riding. The next day, he drove plaintiff and her bike to his parents’ property, unloaded the motorcycle, and provided her with protective riding gear.

He told her to ride on the driveway while he took a warm-up lap on the track. Instead, plaintiff entered the track and rode in the opposite direction from Gunner.

Their bikes collided, and both were injured. Plaintiff lost tissue from one of her fingers. Gunner suffered a broken pelvis and a knee injury.

Plaintiff sued Donald, Christina, Gunner, Dillon, and a business owned by Donald. She asserted claims for (1) negligence, (2) premises liability based on negligent track design, and (3) negligent provision of medical care.

There was no dispute that Gunner invited plaintiff onto his parents’ property. The parties disagreed as to whether the invitation was to ride on the motocross track.

Plaintiff claimed Gunner invited her to ride on the track. Gunner claimed the plan was to retrieve his motorcycle from his parents’ house and to ride in a riverbed off his parents’ property.

As explained below, plaintiff had not shown a landowner extended an express invitation to come onto the property; thus, the Supreme Court did not need to address the scope of any invitation.

After Donald’s company settled, the Youngs were all granted summary adjudication on the negligence and premises liability claims, successfully arguing that those claims were barred by the primary assumption of risk doctrine.

After plaintiff petitioned for a writ of mandamus, the Court of Appeal issued an alternative writ concluding there were triable issues of fact that precluded summary adjudication of those claims as to Donald and Christina.

The trial court reinstated those causes of action against Donald and Christina alone. The provision of medical care claim was allowed to go forward against all remaining defendants.

On the day before trial began, defendants moved to amend their answer to add an affirmative defense of recreational use immunity under section 846. That section provides in relevant part that a landowner owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose.

Plaintiff opposed the motion. With the parties’ agreement, the court deferred ruling.

As the trial progressed, however, questions repeatedly arose as to whether defendants would be permitted to amend their answer and whether the recreational use immunity defense was applicable.

On the fourth day of trial, while plaintiff was still presenting her case, the court revisited the outstanding motion to amend. In opposition, plaintiff argued first that the motion was untimely.

Plaintiff’s counsel asserted that they would have pursued discovery quite a bit differently if plaintiff had known defendants would claim immunity under section exception, which provides that section 846(a) does not limit the liability which otherwise exists for any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

Plaintiff argued that Gunner’s invitation abrogated any immunity under section 846(a). The trial court again deferred ruling.

On the sixth day of trial, the court and counsel discussed the verdict form. Defendants argued the form should include a question regarding recreational use immunity. Plaintiff repeated her arguments that the motion to amend was untimely and the defense was inapplicable. The court again postponed its ruling.

Two days later, after plaintiff had rested, the court granted defendants’ motion to amend, concluding the express invitee exception of section 846(d)(3) was inapplicable as a matter of law.

It reasoned that neither Donald nor Christina had expressly invited plaintiff onto the property. Instead, it was Gunner, a nonowner, who had invited her. Accordingly, in the court’s view, the general rule of section 846(a) shielded the parents from liability.

At the close of trial, the following facts were undisputed. Donald and Christina had never met or seen plaintiff before the accident, and she had never been on the property before. Neither parent personally invited plaintiff to enter their land. Gunner did not ask his parents’ permission to invite plaintiff to enter and did not tell them that he had done so.

Before jury deliberations, the court entered a directed verdict for Christina on the negligence and premises liability claims because there was no evidence she had any role in the track’s design or maintenance.

The jury returned a verdict for the defense on all claims. The court did not ask the jury for findings on the express invitee exception because it had previously concluded that the exception did not apply.

Plaintiff moved for a new trial, asserting, inter alia, that the trial court erred by: (1) allowing defendants to amend their answer to allege an affirmative defense under section 846(a); (2) excluding certain evidence relevant to the application of the express invitee exception; and (3) ruling that the express invitee exception was inapplicable. The trial court denied the motion.

A divided Court of Appeal reversed and remanded for a new trial on the two claims related to the immunity defense.

The majority held that where, as here, a child of the landowner is living with the landowner on the landowner’s property and the landowner has consented to this living arrangement, the child’s express invitation of a person to come onto the property operates as an express invitation by the landowner within the meaning of section 846, subdivision (d)(3), unless the landowner has prohibited the child from extending the invitation.

Because there was no evidence that Gunner’s parents prohibited him from inviting guests onto the property, the majority concluded that Gunner’s express invitation of plaintiff stripped his parents of the immunity that would otherwise have been provided to them by section 846.

The issue was whether an invitation made by a nonlandowner, without the landowner’s knowledge or express approval, can satisfy the requirements of section 846(d)(3) and abrogate the landowner’s immunity under section 846(a).

This is a question of statutory interpretation.

The court's task is to ascertain the Legislature’s intent and effectuate the enactment’s purpose.

When a statute’s words are clear, their plain meaning controls and we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.

While the words of a statute provide the most reliable indication of the Legislature’s intent, the court does not construe those words in isolation. Instead, it harmonizes the enactment’s various parts by considering the provision at issue in the context of the whole statutory scheme.

The general rule is that a landowner owes certain affirmative duties of care, as to conditions or activities on the land, to persons who come on the land.

Civil Code section 1714 provides that every person is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property.

Under section 1714, landowners owe a duty to exercise ordinary care in managing their property in light of the foreseeability of injury to others.

Section 1714, which has been unchanged since 1872, states a civil law and not a common law principle.

Previously, the liability of a possessor of land for injury to an entrant was generally based on the entrant’s status.

Entrants were divided into three categories: invitees; licensees; and trespassers.

An invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them.

A licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent.

A trespasser is a person who enters or remains upon land of another without a privilege to do so.

The general rule with respect to trespassers and licensees was that they took the premises as they found them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owed them only the duty of refraining from wanton or willful injury.

Invitees also included persons invited to enter or remain on land as a member of the public for a purpose for which the land was held open to the public.  

Thus, a landowner generally owed no duty to a trespasser or licensee to keep the premises in safe condition.

As to business or other invitees, landowners owed a duty to exercise ordinary care to render the premises safe and to protect the invitee from injury.

Over time, various exceptions to these rules developed. Confusion arose surrounding the scope of these exceptions, as well as the definitions of invitee, licensee, and trespasser. The Supreme Court replaced the former concept of liability based on an entrant’s status with the current application of liability based on ordinary principles of negligence under section 1714.

As to trespassers and licensees whom the landowner knew or should have known were on the land, a landowner had a duty to warn of artificial conditions constituting concealed dangers and to exercise reasonable care in carrying on activities.

Section 846, enacted in 1963, creates an exception in favor of landowners as against the liability imposed by section 1714.

Section 846(a) provides: An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.

Section 846(a) absolves California landowners of two separate and distinct duties that might arise under section 1714: (1) the duty to keep the premises safe for recreational users; and (2) the duty to warn such users of hazardous conditions, uses of, structures, or activities on the premises.

Here, the Supreme Court considered only the first of these duties. Plaintiff did not argue that defendants owed her a duty to warn.

The purpose of section 846 is to encourage property owners to allow the general public to recreate free of charge on privately owned property.

Before the statute’s enactment, there had been a growing tendency among California landowners to withdraw land from recreational access because of the potential liability they faced under section 1714.

The Legislature sought to reduce landowners’ potential exposure by removing the specter of tort liability to most recreational users of private property.

The effect of section 846 was to negate the tort, by eliminating certain duties a landowner would otherwise owe to recreational users.

The existence of a duty, of course, is an essential element of tortious negligence.

Section 846 immunity is broad, but it is not absolute.

There are three statutory exceptions to the general rule of nonliability. At issue here is the express invitee exception, which is found in section 846(d)(3). It provides that section 846(a) does not limit the liability which otherwise exists for any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

In summary, section 1714 imposes a duty to use ordinary skill and care in the management of property in order to prevent foreseeable injury to others. Section 846(a) eliminates an owner’s duty to keep premises safe for entry or use by others for recreational purposes.

However, under section 846(d)(3), if an owner expressly invites someone onto the property and the person is injured while using the land for a recreational purpose, then the general release from liability is abrogated. The question arises whether an express invitation to enter, made by someone other than the landowner, can bring section 846(d)(3)’s exception into play and abrogate the elimination of liability.

An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency.

An agent may be authorized to do any acts which his principal might do, except those to which the latter is bound to give his personal attention.

Moreover, every act which, according to the Civil Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears.

Nothing in section 846(d)(3) suggests an intent to preclude an agent from extending an invitation on behalf of a landowner. Reading section 846(d)(3) in conjunction with section 2305, there is clear statutory support for the conclusion that an invitation communicated by the landowner’s properly authorized agent can activate the section 846(d)(3) exception.

The heart of agency is expressed in the ancient maxim: “Qui facit per alium facit per se.” [He who acts through another acts by or for himself.]

If the Supreme Court interpreted section 846(d)(3) as only applying to those who receive an express invitation from a landowner personally, an owner could avoid the exception by the expedient of authorizing a third party to invite a person onto his property in order to retain immunity under section 846(a). There is no indication the Legislature intended to create such a loophole.

As noted, the general rule of section 846(a) provides immunity to the landowner.

Section 846(d)(3) sets out an exception. A plaintiff seeking to rely on an exception to a general statutory rule bears the burden of establishing the exception applies.

The Supreme Court imported an agency analysis to determine under what circumstances landowners can authorize a nonlandowner to invite others onto their property with the consequence that they lose the immunity conferred by section 846(a).

Under section 2305, any act that may be done by a person according to the Civil Code may be done by someone the person has made their agent for that purpose. Thus, when a landowner has properly authorized an agent to extend, on his or her behalf, an invitation to enter the land that invitation gives rise to the exception.

Importing an agency-derived analysis here ensures a more formal approach to section 846(d)(3)’s exception than reliance on a newly-created implied agency approach taken by the majority below.

The question presented here is not whether a child can invite friends over. The legal question is whether the circumstances establish that a parent has authorized the child to issue an invitation on the parent’s behalf, such that the child’s invitation strips the landowner of immunity.

No particular words are necessary, nor need there be consideration. All that is required is conduct by each party manifesting acceptance of a relationship whereby one of them is to perform work for the other under the latter’s direction.

That said, an agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency. 

Common social convention would indicate that parents often permit a child, even a minor of a certain age, to invite social guests onto the family property. However, that convention standing alone would be insufficient to create an agency relationship.

As the case law makes clear, to constitute an agency relationship the authority delegated must be that which permits the agent to act not only for, but in the place of, his principal in dealings with third parties.

As applied to the context of section 846(d)(3), that would mean that an agency relationship can only be created if a landowner delegated the authority to a nonlandowner to invite guests on the landowner’s behalf.

Mere implied permission to invite friends over would not suffice to trigger section 846(d)(3)’s exception. While a child may be allowed to invite friends of their choosing, without more, the invitation is theirs alone.

Further, under the facts in this record, Gunner cannot be said to have acted on his parents' behalf and subject to their control.

His parents did not know plaintiff, nor were they aware of the invitation. The evidence adduced at trial points to Gunner acting on his own behalf and not under the control of his parents.

By allowing a child to invite friends over for social purposes a parent permits those friends to enter their land. But it goes too far to suggest that they, as property owners, expressly extend such an invitation to thus divest themselves of immunity.

Plaintiff seeks the shelter of this exception. Accordingly, she should bear the burden of persuasion on the point, and she failed to do so.

The Court of Appeal’s judgment was reversed, and the matter was remanded to the Court of Appeal for it to address plaintiff’s claim that the trial court erred by denying her motion for a new trial and for further proceedings consistent with this opinion.

LESSONS:

1.         Under Civil Code section 846, landowners generally owe no duty of care to keep their property safe for others who may enter or use it for recreational purposes.

2.         There is an exception to that statutory negation of duty, however, when a landowner expressly invites someone onto the property.

3.         A plaintiff may rely on the exception and impose liability if there is a showing that a landowner, or an agent acting on his or her behalf, extended an express invitation to come onto the property, and the Plaintiff has the burden of proof.

4.         It is particularly appropriate to require a degree of specificity in a landowner’s intentional delegation because an invitation by a properly authorized agent can function to strip a landowner of the immunity the Legislature took care to confer. Nothing the Supreme Court says in the decision, in applying agency principles to section 846(d)(3), should be understood to undermine or run counter to long-settled broad principles relating to the law of agency.

Does a Property Owner Owe a Duty of Care to a Jogger?

In the recent California case of Rucker v. Wincal, LLC, the second district court of appeal ruled that a landowner does not owe a duty of care to a jogger engaged in recreational use of the property.

As part of her training for a half-marathon, plaintiff Shanna Rucker was jogging on property owned by WINCAL LLC (owner) when she encountered a homeless encampment that blocked her path. To avoid the encampment, she ran onto the street’s bicycle lane, where she was struck and injured by a car.

Plaintiff sued owner for negligence and premises liability.

The trial court granted owner’s motion for summary judgment, concluding, among other things, that because plaintiff was engaged in a recreational use of the property within the meaning of Civil Code section 846, subdivision (a), owner did not owe her a duty of care.

The appellate court affirmed. Jogging to train for a foot race is an activity in which one engages for a “recreational purpose” under section 846, and a property owner generally owes no duty of care to those who enter or use its property for such an activity.

At around midnight on November 9, 2016, plaintiff, as part of her preparation for a half-marathon, went for a six-mile jog. Plaintiff’s planned route began and ended at her home and passed through the west side of Winnetka Avenue and onto owner’s property.

Plaintiff was familiar with the area because she had jogged through it three or four months prior to the incident, and also drove through it one week earlier.

As she jogged through owner’s property, plaintiff noticed that her path was blocked by a homeless encampment, which caused her to deviate onto the bicycle lane on the street. She planned to be in the bicycle lane only long enough to pass by the encampment, but was struck by a car and thrown more than 30 feet. She sustained serious injuries.

Plaintiff filed a complaint, naming owner as one of the defendants. In her second cause of action, plaintiff alleged that owner negligently managed, maintained, controlled, and inspected its property.

In her third cause of action, she alleged that owner knew, or should have known, that its premises were in a dangerous, defective, and unsafe condition due to the homeless encampment and failed to take measures necessary to cure those conditions or to warn plaintiff about them. For both causes of action, plaintiff alleged that she was directly and proximately injured by owner’s negligence.

Owner moved for summary judgment, arguing, among other things, that pursuant to section 846, subdivision (a), it did not owe a duty of care to plaintiff, who entered owner’s property for a recreational purpose.

Owner also argued that it did not owe a duty to plaintiff because any danger posed by the homeless encampment was open and obvious.

Plaintiff opposed the motion, contending that section 846, subdivision (a) did not apply to jogging. She noted that jogging is not included in the list of activities for recreational use in section 846, subdivision (b), nor is running.

Citing Gerkin v. Santa Clara Valley Water Dist., plaintiff argued that it must be a question for the jury whether "jogging" on the pathway on owner’s property is considered "hiking" for purposes of section 846.

Plaintiff also argued that even if the open and obvious nature of the danger posed by a homeless encampment negated a duty to warn against the danger, it did not necessarily negate a duty to remedy the danger, which was also a question of fact for the jury.

The trial court conducted a hearing on the summary judgment motion and granted it. The court concluded that owner had met its burden of showing that plaintiff’s jogging was for a recreational purpose. "Hiking" as used within the recreational use statute, does not include merely "walking," but rather to take a long walk for pleasure or exercise.

The Court in Gerkin relied on a Webster’s dictionary to determine the definition of hiking.

Webster’s defines "jog" as to run or ride at a slow trot" or "to go at a slow, leisurely, or monotonous pace." It necessarily follows that plaintiff’s jogging was a leisurely run, which falls within the recreational use statute when that statute is construed broadly.

As such, the burden shifts to plaintiff. Plaintiff did not met her burden.

Plaintiff merely argued that "jogging" is not within the list of recreational activities in section 846, subdivision (b), and it is a question of fact for the jury to determine if plaintiff’s jogging was "hiking" as used within the statute. 

This list is non-exhaustive and is to be construed broadly. Jogging is more akin to hiking as it is movement that has a leisurely component to it, unlike merely walking. Accordingly, summary judgment was properly granted on that ground.

The trial court also concluded that the homeless encampment was an open and obvious danger such that owner owed plaintiff no duty to warn about or remedy it.

Section 846, subdivision (a) provides that an owner of real property, with certain exceptions not applicable here, “owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose.”

Further, subdivision (b) provides that “[a] ‘recreational purpose,’ as used in this section, includes activities such as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.”

The list of activities set forth in section 846 is not exhaustive; nor indeed would the plain language of the statute support such a claim.

The statutory definition of "recreational purpose" begins with the word "includes," ordinarily a term of enlargement rather than limitation.

Thus, courts have applied section 846 to activities that are not explicitly listed, including horse wagon train for historical simulation, kite flying, and tree climbing. The above activities fall within the definition of a “recreational purpose” because they are “intended to refresh the body or mind by diversion, amusement or play.”

Generally, whether one has entered property for a recreational purpose within the meaning of the statute is a question of fact, to be determined through a consideration of the totality of the facts and circumstances, including the prior use of the land. While the plaintiff’s subjective intent will not be controlling, it is relevant to show purpose.

Where, however, material facts are not in dispute, whether one entered the property for a recreational purpose may be decided as a matter of law in a summary judgment proceeding.

Here, the trial court granted summary judgment based, in part, on its conclusion that owner did not owe plaintiff a duty of care pursuant to section 846 because plaintiff, who was jogging as part of her half-marathon training, entered owner’s property for a recreational purpose.

Plaintiff contended that the trial court wrongly inserted "jogging" into section 846.

To the extent plaintiff suggests that “jogging” is not an activity with a recreational purpose because it is not specifically enumerated in section 846, subdivision (b), her suggestion is plainly without merit, as section 846, subdivision (b) is an illustrative, not exhaustive, list. 

Plaintiff also asserts that the trial court erred when it expanded hiking to include jogging because obviously, “hiking” was intended to denote more than just traveling on foot.

The appellate court disagreed with that assertion.

The trial court concluded that jogging was akin to hiking, not that hiking included jogging. Even if the mere act of jogging, a form of movement by foot, were insufficient to demonstrate a “recreational purpose”, it was undisputed here that plaintiff was jogging as part of her training for a half-marathon.

She was not, for instance, jogging because she was late for work, an activity that would not fall within the statutory definition of “recreational purpose.” Rather, she was engaged in an activity for “pleasure or exercise”  “intended to refresh the body or mind by diversion, amusement or play”.

Because the undisputed evidence showed that plaintiff entered owner’s property for a recreational purpose, owner met its burden of showing that it owed her no duty of care pursuant to section 846, and plaintiff failed to demonstrate a triable issue of material fact as to her negligence and premises liability claims. The trial court therefore did not err by granting summary judgment in favor of owner.

Because summary judgment was appropriate based on section 846, the appellate court did not address the parties’ arguments concerning whether the homeless encampment was an open and obvious danger such that owner owed plaintiff no duty of care.

LESSONS:

1.         If an activity is for a “recreational purpose” under Civil Code section 846, a property owner generally owes no duty of care to those who enter or use its property for such an activity.

2.         Be careful about jogging at night.

Must Property Owner Have Actual or Constructive Notice Before Incurring Liability?

This issue was the subject of the recent California appellate court decision in Howard v. Accor Management US, Inc.

When Monique Howard went to shower during her hotel stay, the handheld shower head fell apart. Howard cut herself and fell.

Later she sued the hotel for negligence and premises liability.

The trial court granted summary judgment, and the appellate court affirmed because Howard failed to mount a triable issue of material fact on the key issue of notice and failed to establish the applicability of a venerable but inapt doctrine—res ipsa loquitur.

In March 2017, Howard and her then boyfriend stayed at the Sofitel Los Angeles at Beverly Hills. Both took showers on their arrival day without incident.

The next morning, they took individual showers again and went shopping. When Howard returned that afternoon, she noticed the room had been cleaned. She went to take another shower before her scheduled massage.

During her deposition, Howard described what happened when she went for this third shower: “[I]t was a little after 1:00 and when I got into the shower it started spraying me in the face, and it is two shower heads. There is an overhead shower, I guess men would use, and then there is a shower that they have that is a detachable shower. As soon as I stepped in the shower and turned the water on I noticed that it was spraying me in the face, which was a little odd for me because I had took a shower earlier that day. I was -- kind surprised me, plus I had full makeup on. It was spraying me in my face. When that happened I went to take the shower off of the shower handle and that is when it just dismantled and fell apart.”

Howard sued in March 2019. Her complaint asserted the broken shower head cut her hand, caused her to fall back onto her tailbone, and left her with severe injuries.

Howard later amended her complaint to sue Accor Management US, Inc., the only respondent on appeal, who operated the hotel at the time of the incident.

Accor moved for summary judgment, arguing Howard could not establish it had actual or constructive notice of any problem with the handheld shower head.

The hotel did not contest the shower head came apart while Howard was showering. Nor did it contest a housekeeper had cleaned Howard’s room the day before and the day of the incident.

Howard responded with declarations by herself and her boyfriend, and both claimed they did not notice any cracks or damage to the shower wand during their two showers before the incident. They also claimed they did not drop, hit, mishandle, tighten, damage, or break the wand during these earlier showers. The boyfriend did not use the shower wand at all—he only used the fixed overhead shower.

Howard’s description of the incident in her declaration differed somewhat from the description at her deposition: She declared that for her third shower, the water sprayed her and in all directions when she turned on the faucet. She reached for the wand, and it sliced her hand, suddenly came apart, and fell to the floor.

Howard’s opposition argued the hotel’s housekeeper must have broken the shower wand and failed to report this, and the hotel thus had actual knowledge of the problem its housekeeper caused, because the wand was fine for the morning shower but broken for the afternoon shower and only the housekeeper was in the room between showers.

Howard supplied the declaration of her retained expert, Brad P. Avrit, to help establish the housekeeper broke the wand between showers.

She also argued the doctrine of res ipsa loquitur applied and rendered summary judgment inappropriate.

The trial court sided with Accor on the issue of notice and concluded Howard’s showing that the housekeeper negligently broke the shower wand was insufficient.

The court also rejected the res ipsa loquitur doctrine. Regarding Avrit, the court sustained most but not all of Accor’s evidentiary objections, concluding Avrit’s declaration “is replete with inadmissible opinion evidence regarding legal conclusions. More importantly, Avrit’s declaration contains conclusions that lack foundation and which are speculative in nature.”

Property owner must have actual or constructive notice of an unsafe condition before incurring liability.  Notice requirement applies to hotels on negligence and premises liability claims.

Howard offered four reasons summary judgment was inappropriate:

(1) her evidence raises triable issues regarding the hotel’s knowledge of the unsafe shower wand;

(2) whether the hotel conducted a reasonable inspection of the wand and had sufficient time before the incident to discover its unsafe condition are other triable issues;

(3) the doctrine of res ipsa loquitur applies; and

(4) the trial court abused its discretion in disregarding the declaration of Howard’s expert.

Howard recognized her claims require actual or constructive knowledge of an unsafe condition by the landowner.

But Howard forfeited any argument about the hotel’s constructive knowledge or notice due to unreasonable inspections because she never presented this issue to the trial court, either in her opposition brief or during oral argument. 

There was a good reason for this omission: Howard’s theory in the trial court was the housekeeper broke the shower wand while Howard was shopping and then failed to tell anyone or do anything about it. This theory is inconsistent with a theory the wand broke at some unknown earlier time yet went undiscovered due to inadequate inspections by the housekeeper or the hotel.

As for actual notice, Howard maintained on appeal, as she did at the trial court, that we impute knowledge of an unsafe condition to an employer where the employee created the condition.

She argued the evidence showed the housekeeper was the only one to see and use the shower wand after it was functioning properly that morning, and, in light of hotel witnesses’ comments about how housekeepers use these wands when cleaning, the only reasonable inference is the housekeeper did something to break this wand or at least noticed its poor condition.

Therefore, the court must conclude it was more likely than not Accor knew of the shower wand’s unsafe condition.

Howard’s problem was nothing showed the housekeeper did anything to break the shower wand.

The evidence did not show the housekeeper was required to use the wand. There was no evidence from the housekeeper, as Howard decided not to depose her. No evidence suggested this housekeeper used this wand during her cleaning that day.

For example, Howard did not testify the shower walls were wet before she took her afternoon shower.

The hotel’s Housekeeping Standards say housekeepers are to spray bathroom fixtures with cleaning solution during cleanings; but we are not told these standards say anything about using shower wands. Housekeepers are to prepare a work order if they notice any problems with a fixture; but no work order existed for Howard’s room.

While some hotel witnesses testified about housekeepers using detachable shower heads when cleaning, the testimony was not clear on when, if ever, these shower heads had to be used. One witness discussed cleanings after check outs and those for stayover guests. Howard did not address this distinction.

The hotel witnesses also established the hotel’s engineering and maintenance team had inspected Howard’s room several months before the incident, and had performed a preventative maintenance check on the shower fixtures, but the team found no issue with these fixtures.

There were no other reports of defective or broken shower heads at the hotel. Further, no assembly was required for the section of the shower head that broke—it arrived in one piece from the distributor/manufacturer.

The evidence did not show the shower wand was broken before Howard grabbed it. When describing the incident at her deposition, Howard did not say the wand was sharp or broken then. Nor did Howard’s declaration say she was cut before the wand fell apart.

On the final issue, Howard admits it was her burden to establish res ipsa loquitur.

This doctrine applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence.

Or, as the California Supreme Court explained it, “certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks for itself.’ ”

The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm.

Two elements were missing here. First, as addressed above, it was not apparent hotel shower heads only fall apart due to the hotel’s negligence.

Second, Howard’s deposition testimony suggested her grabbing action could have broken the wand.

LESSONS:

1.         Property owner must have actual or constructive notice of an unsafe condition before incurring liability.

2.         The doctrine of res ipsa loquitur applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence.

3.         The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm.

Are Regular Inspections a Defense to Slip and Fall Claims in California?

In the recent appellate decision of Gonzalez v. Interstate Cleaning Corporation, Plaintiff Grace Gonzalez appealed from a summary judgment entered in favor of defendants Interstate Cleaning Corporation (ICC) and Ontario Mills Limited Partnership (OMLP).

Gonzalez slipped and fell when she stepped on oranges that were on the floor of the common walkway of the Ontario Mills Shopping Center, owned and operated by OMLP.

ICC was the janitorial company hired to provide maintenance services, including monitoring the floors for spills and debris.

The trial court ruled there was no triable issue of material fact that, because defendants conducted active and frequent inspections of the floors, including where plaintiff fell, defendants had no actual or constructive knowledge of the spilled oranges and could not be held liable for the fall.

Because it found no error, the appellate court affirmed.

Around 3:00 p.m. on December 31, 2007, plaintiff and her two minor granddaughters were walking in the common area of the Ontario Mills Shopping Center in front of a Converse store (between the Converse store and an art kiosk).

Plaintiff slipped and fell on what appeared to be oranges.

The granddaughters, who were walking two to three steps ahead, saw the oranges and were turning to warn plaintiff when she fell.

Earlier in the day, the three had walked in this area of the shopping center but had not seen anything on the floor.

After she fell, plaintiff saw an orange substance she described as the separate, smashed slices of at least one peeled orange. She did not know if the orange had been smashed before or after she fell.

Neither plaintiff nor her granddaughters saw anyone spill or drop the oranges and they did not know where they had come from. Nor did they know how long the oranges had been there.

An employee from the Converse store helped plaintiff into the store so she could sit and wait for security to arrive. A worker from the art kiosk across from the Converse store cleaned up the oranges. Finally, a shopping center security guard escorted plaintiff in a wheelchair to a family car.

Two years later, plaintiff filed a form complaint against OMLP and ICC alleging a single cause of action for premises liability.

Defendants moved for summary judgment arguing they could not be held liable for plaintiff’s injuries because they had no actual or constructive knowledge of the spilled oranges and could not have remedied the dangerous condition in time to avert the fall.

In support of their motion, defendants submitted evidence of their training and maintenance regimens.

When the shopping center is open to the public, the duty and sole goal of janitorial employees of ICC (called “porters”) is to walk predesignated routes and regularly and continuously inspect the common area floors for any liquid or debris.

Other porters’ duties are to empty trash bins and maintain the food court area.

Wayne Rodriguez, vice-president of operations for ICC, and the shopping center site manager, conducted a rigorous training program for porters to ensure they understood the importance of the inspections.

The training began with 21 days of hands-on training on how to follow the designated porter route (path of travel); how to walk and simultaneously examine and scan the floor for debris, substances, and/or other liquids; and how to clean any conditions they observed.

Next, ICC conducted additional training and unannounced testing during the following 30, 60, and 90 days.

During that time, Mr. Rodriguez and the site manager tested and examined the porters on how they performed the following tasks: following their designated routes; conducting inspections of the common area floors; blocking off any observable spills and setting up appropriate warnings; and cleaning and drying the floor before leaving the affected area.

Finally, after 90 days, porters received regular and unannounced training and testing for the remainder of their employment.

Porters were trained to constantly look down at the floors from left to right and right to left while walking in a serpentine pattern so they could examine all of the common area floors.

In each beacon zone, the porters were trained to walk around seating and seller kiosks inside the common areas because those objects might block the porter’s line of sight. For this reason, porters were trained not to push janitorial carts as the cart’s bulk might interfere with their ability to properly observe floor conditions.

Finally, porters were trained to complete their predesignated routes in the shopping center approximately every 20 to 30 minutes.

On the day of plaintiff’s fall, there were 31 ICC porters on duty inspecting the shopping center floors.

Ms. Villa, the porter assigned to the area where plaintiff fell on that day, had been employed by ICC since 2015. Mr. Rodriguez personally trained Ms. Villa and he regularly observed Ms. Villa’s work during the two years preceding the incident.

He never observed Ms. Villa walk past any debris or spilled items without cleaning the flooring, and she had no disciplinary problems while employed by ICC.

As part of its inspection program, ICC installed an employee tracking system called the “Lighthouse” system to track porters as they conducted their walking inspections.

This electronic sweep-sheet system was an improvement on handwritten sweep sheets because it was tamper-proof and recorded in real time.

The first part of the system consists of the Lighthouse “beacons” that are domes attached to the ceiling throughout the shopping center common areas at various intervals along porter routes.

Defendants introduced beacon maps showing the domes throughout the shopping center.

The beacon zones inside the shopping center common area are rectangular and measure 150 feet by 33 feet. The zones overlap at the outer edges so ICC can constantly track porters.

While conducting an inspection, a porter is always within range of a beacon dome. A porter can traverse and inspect an entire beacon zone in one minute and 30 seconds.

The second part of the Lighthouse system consists of company cell phones carried by the porters. An application installed on the cell phones communicates with the beacons through Bluetooth technology when a porter enters a beacon zone.

The beacon collects data, including the porter’s identity, the porter’s exact location while on their route, and the inspection time while the porter is in the “beacon zone” down to a hundredth of a second.

The data is then transmitted in real time to a server maintained by the third party vendor, Lighthouse, which itself is the third part of the system. The data is permanently stored on the server as it is received in real time, and the server is tamper proof.

The fourth part of the system is ICC’s computers, from which Lighthouse reports are generated. Defendants introduced a Lighthouse map and report to establish that beacon zone 3 was constantly monitored on December 31, 2017.

More specifically, the reports demonstrate Ms. Villa’s inspections on that day. Ms. Villa inspected beacon zone 3 (the area where plaintiff fell in front of the Converse store) eight minutes before 3:00 p.m.

The report showed Ms. Villa entered the area where zones 4 and 3 overlap and into zone 3 at 2:50:29 p.m. Ms. Villa was inside zone 3 for a total of one minute and 29 seconds, exiting the zone at 2:51:58 p.m.

Plaintiff opposed the motion contending there were triable issues of material fact whether defendants actively and thoroughly inspected the common area where she fell and, therefore, whether defendants had constructive knowledge of the spilled oranges and the opportunity to clean the spill before plaintiff fell.

Inter alia, she argued defendants had not introduced the testimony of Ms. Villa to prove she had thoroughly inspected the common area floor and defendants cited no authority for the proposition that a store owner may prove active inspection with evidence of an automated employee tracking system.

In support of her opposition, plaintiff introduced the declaration of Brad Avrit, a licensed civil engineer, who opined the floor where plaintiff fell had an unsafe slip resistance and that defendants had constructive knowledge of the dangerous condition before the fall.

With minor exceptions, plaintiff did not dispute most of defendants’ statements of undisputed material facts relating to the accident and to defendant’s training and inspection of the common areas.

In reply, defendants objected to almost the entirety of the declaration of Brad Avrit.

At the hearing, defendants argued they were not required to introduce testimony from Ms. Villa or video evidence, and the undisputed evidence they did introduce demonstrated they actively inspected the common area floors no more than eight to nine minutes before plaintiff fell.

Therefore, defendants argued plaintiff could not establish constructive knowledge of the spilled oranges and summary judgment should be granted.

The court ruled the undisputed evidence demonstrated defendants had no actual knowledge of the oranges before plaintiff fell, and evidence of Ms. Villa’s training and ICC’s inspection practices established the area where plaintiff fell had been inspected between eight to nine minutes before the incident.

The evidence of a reasonable inspection within a short period before the fall showed defendant lacked constructive knowledge of the dangerous condition with time to cure.

Therefore, the trial court granted summary judgment and subsequently entered judgment for defendants.

The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.

Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.

But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.

A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.

The owner must use the care required of a reasonably prudent person acting under the same circumstances.

This includes a duty to keep the floors safe for patrons’ use.

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.

Although the owner’s lack of knowledge is not a defense, to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier 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 invitees on his premises.

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.

The 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.

Knowledge may be shown by circumstantial evidence which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.

Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.

The 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.

A plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.

Allowing the inference does not change the rule that if a store owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach will be found even if a plaintiff does suffer injury.

Plaintiff contended defendants are not entitled to summary judgment because they did not introduce Ms. Villa’s testimony about the adequacy of her inspection of the floors before the fall or other competent evidence such as video showing the inspection.

She argued, essentially, there is no authority for a store owner to prove it actively inspected the area in a reasonable manner with a declaration of a knowledgeable employee and evidence of an electronic employee monitoring system.

But plaintiff cited no case that has held the store owner must introduce the testimony of the employee who conducted the inspection, and we have found none.

The store owner may prove it exercised reasonable care and inspected the floor within a brief period before the accident with a declaration from a knowledgeable person describing the store’s regular maintenance practices and the record of actual inspections conducted around the time of the plaintiff’s injury.

Mr. Rodriguez’s declaration was competent testimony about ICC’s porter training program, its maintenance and employee monitoring regime, and Ms. Villa’s record as a porter. Moreover, he properly laid the foundation for introducing reports showing Ms. Villa inspected the affected area around the time of plaintiff’s fall. The trial court properly considered that evidence.

To contradict defendants’ assertion that Ms. Villa walked the common area in front of the Converse store in a “serpentine” fashion, plaintiff pointed to the fact the exhibit of the beacon map contained a straight line showing Ms. Villa’s general path of inspection travel from beacon to beacon in the area where plaintiff fell.

However, defendants contended the line was merely demonstrative to show the starting and end point of Ms. Villa’s inspection just before 3:00 p.m. and did not represent her exact path of travel.

The trial court properly rejected plaintiff’s argument, noting, plaintiff did not dispute facts associated with the training Ms. Villa received associated with inspecting the mall, which included being trained to walk the floors in a “serpentine” fashion and around obstacles while scanning the floor from side to side.

The appellate concluded the trial court properly ruled the undisputed evidence showed defendants actively inspected the floor, and the eight- to nine-minute interval between the last inspection and plaintiff’s fall was insufficient to demonstrate constructive knowledge.

To repeat, there are no “exact time limitations” when determining whether a dangerous when determining whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it.

Here, the undisputed evidence that was credited by the trial court amply demonstrated defendants had adopted employee training and maintenance programs reasonably calculated to ensure regular and active inspections of the floors in the common areas of the shopping center.

The undisputed evidence, and the reasonable inferences to be drawn from it, also demonstrated Ms. Villa inspected the area where plaintiff fell between eight to nine minutes before the fall.

The appellate court agreed with the trial court that, under those circumstances, defendants lacked constructive knowledge of the spilled oranges in time to prevent plaintiff’s fall, and they cannot be held liable in negligence for her injuries.

LESSONS:

1.         A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.

2.         The owner must use the care required of a reasonably prudent person acting under the same circumstances.

3.         The owner is not the insurer of the visitor’s personal safety, and the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.

4.         The 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.

5.         The store owner may prove it exercised reasonable care and inspected the floor within a brief period before the accident with a declaration from a knowledgeable person describing the store’s regular maintenance practices and the record of actual inspections conducted around the time of the plaintiff’s injury.  

What Supports a Wrongful Death Claim in California Related to a Job Site?

This question was answered in the recent California appellate decision in Lorenzo v. Calex Engineerging, Inc., where Plaintiffs Francisco Lorenzo and Angelina Nicolas appealed from a grant of summary judgment in favor of defendants Core/Related Grand Avenue Owner, LLC (Core/Related), Tishman Construction Corporation of California (Tishman), and Calex Engineering, Inc. (Calex).

Defendants were, respectively, the owner, general contractor, and excavation contractor for a construction project in downtown Los Angeles.

Plaintiffs sued defendants for wrongful death after Stanley Randle, a subcontractor’s employee driving a dump truck from his home to a staging area, struck and killed plaintiffs’ two minor daughters, Amy and Marlenne Lorenzo.

Plaintiffs presented evidence that Core/Related represented to the City of Los Angeles (the City) that all dump trucks would be staged on-site at the construction project, with no more than 20 trucks present at a time.

The City granted an excavation permit on that basis, with the condition that staging be on-site only. There was evidence that public safety was an important factor in the City’s approving the on-site construction site and related hauling routes.

In contravention of that permit and Core/Related’s representations to the City, defendants’ trucking subcontractor set up an off-site staging area miles from the construction project.

On the day of the accident, Calex ordered 90 dump trucks to that unpermitted staging area.

Plaintiffs’ theory of liability is defendants’ decision to establish an unpermitted staging area and direct 90 dump trucks to it was negligent, and led to the death of the two girls.

The trial court granted summary judgment upon concluding defendants did not owe a duty of care to the decedents.

The appellate court disagreed.

Civil Code section 1714 establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

The California Supreme Court has recognized, however, that public policy concerns may justify absolving defendants of that general duty of care, and has provided a series of factors, commonly called the Rowland factors, for courts to consider when deciding whether to apply such an exemption.

Here, defendants had a general duty to conduct their construction project with reasonable care for the safety of others.

The question is whether the Rowland factors justify an exception to that duty when defendants implement an unpermitted staging area for construction vehicles.

The appellate court answered that question in the negative.

Defendants’ decision to establish an unpermitted dump truck staging area, without the City assessing the site and the streets approaching it for safety or implementing additional safety measures, foreseeably created a risk a truck driving to the unpermitted area would strike a pedestrian.

Although the direct cause of the accident was the truck driver, case law makes clear a defendant nonetheless owes a duty to the extent the defendant’s negligence increases the risk of the third party’s conduct, in this case, unsafe driving through streets that have not been assessed for safety given the location and usage of the unpermitted staging site.

Defendants were morally blameworthy for violating their permit and misrepresenting their staging plan to the City. Recognizing a duty in this case will not unduly burden developers and contractors—rather, it will encourage them to comply with their permitting obligations.

Core/Related is the owner of a three-acre parcel of real property in Los Angeles bounded by Grand Avenue, First Street, Second Street, and Olive Street. In 2018, Core/Related planned to construct two mixed-use high-rise towers on the property (the project).

The City required Core/Related to obtain a haul route and soil exportation permit to excavate and haul dirt away from the project site (the exportation permit).

As part of the permit application, the City required Core/Related to specify the location of a truck staging area—the location where trucks wait before receiving excavated dirt from the site—and the number of trucks that will be staged.

The City also required a haul route map showing the project site, all involved streets along the hauling route, and the direction of travel to and from the end of the route.

In determining whether to grant the permit, the City will consider, among other matters, the effect of the hauling plan on vehicular and pedestrian traffic in the affected area.

In response to an application, the City’s Department of Public Works may recommend conditions to be imposed on the hauling operations to protect the public health, safety and welfare, and the City’s Department of Transportation may recommend any traffic control measures deemed necessary to protect the public health, safety and welfare.

A City engineer testified the relevant City agencies, upon review of the permit application, might say they don’t like a proposed staging area, or that the staging area is not allowed or allowed only with a set number of trucks.

The City might also determine that only on-site staging is permissible. The engineer stated that safety of the public is a factor in approving a staging plan.

In its application for the exportation permit, Core/Related represented that the truck staging area would be at the project site, and that no more than 20 trucks would be staged on-site at one time.

During the City’s review of the application, an agent for Core/Related responded to a City engineer’s inquiry about a staging plan by stating that all trucks hauling the dirt will be staging on site foot print and that a secondary staging area would not be needed.

The record does not indicate the City’s application process sought, nor did Core/Related provide, descriptions or maps of routes that truck drivers would travel to the staging area at the project site prior to commencing a day’s work. The City approved the exportation permit application on the condition, among others, that staging be allowed on site only.

Calex hired Commodity Trucking (Commodity) to broker trucks to haul dirt away from the project site.

Commodity has a “For Hire” motor carrier permit issued by the California Department of Motor Vehicles and is licensed by the United States Department of Transportation as a common carrier of property (except household goods) by motor vehicle.

Commodity, which owned about 70 dump trucks at the time, subcontracted with Los Morales to provide additional trucks for the project. According to the contract, Los Morales and its employees were not employees of Commodity. Los Morales employed Randle as a dump truck driver.

Notwithstanding the condition in the exportation permit requiring that truck staging for the project be on-site, Commodity selected and used the intersection of 23rd Street and Broadway in Los Angeles as a staging area for the project’s dump trucks.

On the morning of April 4, Randle drove an empty double bottom dump truck owned by Los Morales from his residence toward the staging area. A bottom dump truck is a truck with a trailer into which dirt is loaded from above the trailer and from which dirt is released from the trailer’s underside.

A double bottom dump truck has two such trailers and can be 50 to 60 feet long. According to one witness, these trucks have considerable blind spots and require the driver to make very wide right turns.

As he made a right-hand turn onto northbound Broadway—14 blocks away from 23rd and Broadway—he struck and killed Amy and Marlenne.

Although the circumstances surrounding the children’s deaths were not clear in the record, the parties agreed that the deaths were caused, at least in part, by Randle’s negligence.

Defendants provided evidence that the incident resulted in Randle’s conviction of two counts of vehicular manslaughter.

In July 2019, plaintiffs filed the underlying complaint for wrongful death based on a single cause of action for negligence against Los Morales, Randle, and Doe defendants.

The complaint alleged the defendants were negligent because they owned, leased, hired, maintained, inspected, entrusted, delegated, managed, regulated, controlled, directed, entrusted and operated the subject tractor trailer combination so as to cause it to collide with Amy and Marlenne.

Plaintiffs brought an action for wrongful death, the elements of which are a tort, such as negligence, and resulting death.

To establish a cause of action for negligence, the plaintiff must show that the defendant had a duty to use due care, that the defendant breached that duty, and that the breach was the proximate or legal cause of the resulting injury.

Here, defendants’ motions for summary judgment addressed only the first element, duty.

Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.

Whether such a duty exists and the scope of that duty are questions of law, which the appellate courts consider de novo.

Civil Code section 1714 sets forth, in relevant part, the general rule of duty: Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

This statute establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

The rule of Civil Code section 1714, though broad, has limits.

It imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff’s position worse.

The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged. Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril.

Even when Civil Code section 1714 otherwise would apply, public policy concerns may outweigh that broad principle and justify a departure from Civil Code section 1714’s default rule of duty.

Plaintiffs’ theory of liability is that defendants negligently arranged and/or approved an unpermitted staging area requiring dump trucks to maneuver through pedestrian-heavy streets, leading to the fatal accident.

Defendants’ summary judgment motions require us to address two questions: Do these circumstances impose a general duty of care on defendants, and, if so, do public policy concerns justify an exception to that duty?

As to the first question, the appellate court concluded defendants’ owed plaintiffs a general duty of care. Defendants collectively initiated and/or managed a construction project requiring 90 dump trucks, some 50 to 60 feet long, to drive through downtown Los Angeles over the course of many days.

The appellate court may take judicial notice that downtown streets in Los Angeles are crowded with vehicles and pedestrians.

It is common sense that sending large numbers of heavy construction vehicles down those streets creates a risk of harm to those other vehicles and pedestrians. Defendants therefore had a duty to exercise, in their activities, reasonable care for the safety of others.

The first three Rowland factors involve foreseeability and the related concepts of certainty and the connection between plaintiff and defendant.

The remaining factors—moral blame, preventing future harm, burden, and availability of insurance—embody public policy concerns.

In considering the Rowland factors, courts do not ask whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.

Thus, in evaluating the foreseeability factor, for example, the appellate court does not decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed.

The appellate court reiterated that, based on plaintiffs’ theory of liability, the category of negligent conduct at issue is defendants’ authorization and/or implementation of an unpermitted staging area for construction vehicles. The question is whether public policy should absolve defendants of a duty to pedestrians struck by one of those construction vehicles as it drives to the unpermitted staging area.

There are triable issues as to defendants’ involvement in and approval of that decision. Core/Related obtained the excavation permit, including representing to the City through its agent that all staging would be done on-site, and the municipal code required Core/Related as owner of the project to “be responsible for the work to be performed in accordance with the approved plans and specifications and in conformance with the provisions of this Code.

Applying the first Rowland factor, the appellate court notes that foreseeability in this context is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.

One may be held accountable for creating even the risk of a slight possibility of injury if a reasonably prudent person would not do so even if that possibility is an injury caused by the negligence of a third party.

Under this standard, when, as here, the defendants establish an unpermitted staging area for construction vehicles, thus bypassing the City’s safety evaluation, there is a possibility of a traffic-related accident as those vehicles approach the staging area.

Defendants’ decision to establish an unauthorized staging area, without City approval or involvement, thus foreseeably increased the risk that one of the trucks moving towards the staging area would strike a pedestrian.

Although the direct cause of plaintiffs’ harm was the negligence of the truck driver, there nonetheless was a logical cause and effect relationship between defendants’ alleged negligence and the harm that occurred.

The foreseeability factor weighs against an exception to the duty of care.

The second Rowland factor, certainty of injury, is relevant primarily, if not exclusively, when the only claimed injury is an intangible harm, such as emotional distress. 

Wrongful death is an injury both tangible and amenable to compensation.

The second factor weighs against an exception to the duty of care.

The third factor, the closeness of the connection between the defendant’s conduct and the injury suffered, is strongly related to the question of foreseeability itself, but it also accounts for third party or other intervening conduct.

Where the third party’s intervening conduct is foreseeable or derivative of the defendant’s, then that conduct does not diminish the closeness of the connection between defendant’s conduct and plaintiff’s injury.

LESSONS:

1.         Civil Code section 1714 establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.

2.         Case law makes clear a defendant nonetheless owes a duty to the extent the defendant’s negligence increases the risk of the third party’s conduct, in this case, unsafe driving through streets that have not been assessed for safety given the location and usage of the unpermitted staging site.

3.         To establish a cause of action for negligence, the plaintiff must show that the defendant had a duty to use due care, that the defendant breached that duty, and that the breach was the proximate or legal cause of the resulting injury.

4.         The rule of Civil Code section 1714, though broad, has limits. It imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff’s position worse.

5.         The first three Rowland factors involve foreseeability and the related concepts of certainty and the connection between plaintiff and defendant.

6.         The remaining factors—moral blame, preventing future harm, burden, and availability of insurance—embody public policy concerns.

Does the Financial Elder Abuse Statute Require Knowledge of Plaintiff's Age?

Plaintiffs in civil actions in California age of 65 or older are an "Elder" as defined in the Elder Abuse and Dependent Adult Civil Protection Act set forth at California Welfare & Institutional Code, sections 15600, et seq. ("Elder Abuse Act"), and Section 15610.27 thereof. 

Financial elder abuse is the taking of “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud” or by undue influence.

It is relatively simple to prove “wrongful use.” A plaintiff need only show that the defendant “knew or should have known that the challenged conduct is likely to be harmful to the elder or dependent adult.” 

However, there is no statutory requirement that a defendant knew or should have known that a plaintiff was 65 years of age or older and an "elder" within the meaning of the Elder Abuse Act at the time(s) of wrongful conduct.

The defendant’s subjective state of mind is not a required element of an elder abuse claim. 

In 2008, the Legislature amended the Elder Abuse Act to remove the requirement that plaintiffs prove “bad faith.” It replaced that test with one that turns on “the defendant’s knowledge or presumed knowledge of the effect of the taking on the elder or dependent adult, to which a reasonable standard may be applied.” 

This test focuses on the defendant's actual or presumed knowledge of the effect of the taking of the property from the plaintiff, with no requirement that defendants have knowledge of the Elder Abuse Act or its statutory definition of an elder. 

There is no statutory requirement that defendants knew or should have known the age of an elder plaintiff or that the plaintiff was an "elder" under the Elder Abuse Act.  

To impose the requirement of defendants' knowledge of plaintiff's age or status as an "elder" under the Elder Abuse Act would create a significant limitation on the application of the Act, and provide a convenient defense to defendants who may claim, based on their subjective knowledge, they had no knowledge of the plaintiff's age.  

There is no case authority supporting the requirement that a defendant know or reasonably should know that a plaintiff is an "elder" by being 65 years of age or older, or that such a plaintiff is even protected by the Elder Abuse Act.

Finding a party liable for financial elder abuse does not require an inquiry into the party’s subjective intent. Plaintiff need only prove that under an objective standard, a reasonable person would know that the defendants' conduct was likely to harm plaintiff.

In the decision in Mahan, the appellate court recognized that "in construing the Elder Abuse Act, we begin with its words. We are guided by the ordinary meaning of those words, their relationship to the text of related provisions, terms used elsewhere in the statute, and the overarching structure of the statutory scheme. When the language of a statutory provision remains opaque after considers its text, the statute's structure, and related statutory provisions, we may take account of extrinsic sources - such as legislative history - to assist us in discerning the Legislatures purpose.”

The Mahan decision does not create a requirement that before the Elder Abuse Act applies or can be violated, the defendant must know or should know the plaintiff is an "elder" by being the age of 65 or older, and instead relies upon the ordinary meaning of the words in the statute.

As explained in Mahan, “civil actions may be brought under the Act for . . . ‘ “[f]inancial abuse”.  To strengthen what had previously been a scheme relying on reporting by mandated reporters and public enforcement by prosecutorial authorities, in 1991 the Legislature created a remedial scheme specifically for these private actions. 

A claim for financial elder abuse can be asserted not only against a person or entity who wrongfully deprived an elder of any property right, but also one who assisted another in doing so.

In the case of Wood v. Jamison, defendant committed financial elder abuse both directly, by taking a fee paid through loan proceeds, and by assisting another in taking loan proceeds.

Where there is room for debate regarding the meaning of the statutory text of the Act, it should be liberally construed on behalf of the class of persons it is designed to protect, and in a manner compatible with its overall remedial purpose. 

Defendants violate the Elder Abuse Act by taking financial advantage of a plaintiff, and by committing financial abuse of the plaintiff as defined in Section 15610.30 by: 

a.          Taking, secreting, appropriating, obtaining, or retaining the property for a wrongful use or with intent to defraud plaintiff, or both, and by intentionally not paying the sums due under the a promissory note; 

b.         Assisting in taking, secreting, appropriating, obtaining, or retaining the property for a wrongful use or with intent to defraud plaintiff, or both, by intentionally not paying the sums due under a promissory note; and/or 

c.          Taking, secreting, appropriating, obtaining, or retaining, or assisting in taking, secreting, appropriating, obtaining, or retaining, the property by undue influence, as defined in Section 15610.70, by intentional material misrepresentations that plaintiff would be paid the payments required by a promissory note.

The Judicial Council of California Civil Jury Instructions (2025 edition), CACI 3100, only requires the essential factual elements of proof that all of the following are more likely to be true than not true:

a.         That defendant took, hid, appropriated, obtained, or retained plaintiff’s property, or assisted in taking, hiding, appropriating, obtaining or retaining plaintiff’s property;

b.         That plaintiff was 65 years of age or older at the time of the conduct;

c.         That defendant took, hid, appropriated, obtained or retained, or assisted in taking, hiding, appropriating, obtaining or retaining the property for a wrongful use or with the intent to defraud by undue influence;

d.         That plaintiff was harmed; and

e.         That defendant's conduct was a substantial factor in causing plaintiff's harm.

It would be incongruent to CACI 3100 for the Court to impose an additional element of proof in the bench trial that the defendant knows the age of plaintiff is 65 years or older, and status as an "elder" at the time of the conduct when such an element is not required by CACI 3100 in a jury trial.

The Judicial Council of California Civil Jury Instructions (2025 edition), Special Verdict VF-3100, based on Welf. & Inst. Code §§ 15610.30 and 15657.5(b), only requires the jury to affirmatively answer the following questions to find liability for violation of the Elder Abuse Act:

a.         Was plaintiff 65 years of age or older at the time of the conduct?

b.         Did defendant take, hide, appropriate, obtain or retain plaintiff's property for a wrongful use or by undue influence?

c.         Was defendant's conduct a substantial factor in causing harm to plaintiff?

d.         What are plaintiff's damages?

None of the questions for the jury in the special verdict require the jury to make a finding of fact that a defendant knew the age of the plaintiff at the time of the fraudulent and wrongful conduct.

It would also be incongruent to impose an additional finding of fact in the trial of proof that the defendants knew the age of plaintiff and status as an "elder" at the time of their conduct when such a finding is not required by special verdict CACI VF-3100.

Penal Code § 368 limits a violation to "[a] person who knows or reasonably should know that a person is an elder or dependent adult” and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, and is punishable by imprisonment in a county jail not exceeding one year or a fine, or both a fine and imprisonment, or imprisonment in the state prison for two, three or four years.

Therefore, as evidenced by Section 368, the legislature could have included the "knows or reasonably should know that a person is an elder" as a necessary element in a violation of the Elder Abuse Act in a civil case, but it has not required such an element in a cause of action for financial elder abuse.

LESSONS:

1.         A cause of action for financial elder abuse is a very powerful claim in a civil case where the plaintiff is age 65 or order and was defrauded, and it should always be considered in filing a lawsuit.

2.         Financial elder abuse is the taking of “real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud” or by undue influence.

3.         It is relatively simple to prove “wrongful use.” A plaintiff need only show that the defendant “knew or should have known that the challenged conduct is likely to be harmful to the elder or dependent adult.” 

4.         Finding a party liable for financial elder abuse does not require an inquiry into the party’s subjective intent. Plaintiff need only prove that under an objective standard, a reasonable person would know that the defendants' conduct was likely to harm plaintiff. 

Who Can Recover forNegligent Infliction of Emotional Distress?

In the recent unanimous decision by the California Supreme Court in Downey v. City of Riverside, the Court considered the extent that close relatives can recover for negligent infliction of emotional distress.

Since the 1968 decision in Dillon v. Legg, California courts have recognized a plaintiff’s right to recover in negligence for serious emotional distress suffered as a result of witnessing injuries inflicted on a close relative. 

Recovery for negligent infliction of emotional distress is available, however, only if the plaintiff is present at the scene of the injury- producing event at the time it occurs and is then aware that it is causing injury to the victim. 

In the prototypical case, exemplified by the facts of Dillon, a parent watches as a negligent driver collides with her child. The parent, who is contemporaneously aware of both the driver’s negligent conduct and the child’s resulting injury, is permitted to sue the driver for her emotional trauma. 

The facts of this case required the Supreme Court to consider a new question about emotional distress recovery: What if the plaintiff is aware that injury has been inflicted on the victim, but not of the defendant’s role in causing the injury?

Plaintiff Jayde Downey was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash. Downey heard the collision and its immediate aftermath, but she could not see what had caused it. She claimed that the fault lies partially with individuals and entities responsible for the condition of the roadway where the crash occurred and sued them for negligent infliction of emotional distress. 

The Court of Appeal concluded, however, that Downey was not entitled to recover emotional distress damages against the defendants unless at the time of the crash she was aware of a causal connection between her daughter’s injuries and the defendants’ alleged negligence in maintaining the intersection. 

The Supreme Court concluded this was error. For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters. 

In some cases, as in Dillon, these two things may be effectively the same. 

In many medical malpractice cases, for instance, a bystander ordinarily will not be aware that injury is being inflicted on the victim without also being aware that medical practitioners are, through their deficient care, causing harm. 

But when a bystander witnesses what any layperson would understand to be an injury-producing event — such as a car accident, explosion, or fire — the bystander may bring a claim for negligent infliction of emotional distress based on the emotional trauma of witnessing injuries inflicted on a close relative. 

This is true even if the bystander was not aware at the time of the role the defendant played in causing the victim’s injury. 

Jayde Downey’s daughter, Malyah Jane Vance, was driving in the City of Riverside when her vehicle was struck by another car.

Vance was seriously injured as a result of the collision. At the time of the collision, Downey was talking to Vance by cell phone to give her driving directions to an office close to the intersection. 

On her end of the line, Downey heard Vance suddenly gasp, then say “Oh!” in fear or shock. A split second later, Downey heard the sounds of an explosive metal-on-metal vehicular crash, shattering glass, and rubber tires skidding or dragging across asphalt. 

Downey knew from the sounds she heard that Vance had been involved in a car crash. As the sound of tires dragging across asphalt faded, Downey — having heard no sounds or vocalizations from Vance — understood that Vance was injured so seriously that she could not speak. 

This was confirmed by a stranger who rushed to the scene to help and told Downey over the phone to quiet down so that he could “find a pulse.” 

After the crash, Downey and Vance sued the driver of the other car involved in the collision. 

They also sued the City of Riverside and Ara and Vahram Sevacherian, the owners of private property adjacent to the intersection where the crash occurred. 

Among other things, their complaint sought recovery for negligent infliction of emotional distress on Downey, who suffered emotional trauma as a result of hearing her daughter’s accident occur in real time. 

Downey alleged the City was at least in part responsible for the accident, and thus for Downey’s emotional distress, because the traffic markings, signals, warnings, medians, and fixtures thereon (or lack thereof), were so located constructed, placed, designed, repaired, maintained, used, and otherwise defective in design, manufacture and warning that they constituted a dangerous condition of public property that created an unreasonable and foreseeable risk of injury and harm to occupants of vehicles in the intersection.

Downey alleged the Sevacherians, too, contributed to the accident by failing to trim vegetation on their property, which had obstructed the view of traffic. 

The City and the Sevacherians demurred to the complaint. They argued that Downey could not allege a negligent infliction of emotional distress claim against them because at the time of the collision she was not aware of how their alleged negligence had caused the collision. 

Agreeing with the defendants, the trial court sustained the demurrers without leave to amend. It explained that the complaint’s allegations were insufficient to show that Downey had a contemporaneous awareness of the injury-producing event — not just the harm Vance suffered, but also the causal connection between defendants’ tortious conduct and the injuries Vance suffered.

On appeal, Downey argued that it was unnecessary for her to show contemporaneous awareness of the defendants’ tortious conduct to state a claim for negligent infliction of emotional distress. In a divided decision, the Court of Appeal rejected the argument. 

Negligent infliction of emotional distress is not an independent tort, but the tort of negligence, to which traditional elements of duty, breach of duty, causation, and damages apply. 

Although negligent infliction of emotional distress is a species of the long-established tort of negligence, its origins are considerably more recent. As previously explained, the recognition of a bystander’s claim for the negligent infliction of emotional distress was the outgrowth of two significant developments in California tort law. 

The first development was the recognition of the infliction of emotional distress as a discrete tort cause of action. 

Although the law had previously recognized emotional distress as a significant component of a plaintiff’s damages for various established torts such as assault and false imprisonment, the court for the first time accepted both freedom from emotional distress as an interest worthy of protection in its own right, and the proposition that it is possible to quantify and compensate for the invasion of that interest, even when unaccompanied by physical harm. 

The second development concerned the treatment of emotional distress claims in cases involving negligence— particularly in cases involving emotional harms resulting from negligently inflicted physical injury to another. 

For many years, the general rule in California was that no recovery is permitted for a mental or emotional disturbance, or for a bodily injury or illness resulting therefrom, in the absence of a contemporaneous bodily contact or independent cause of action, or an element of willfulness, wantonness, or maliciousness, in cases in which there is no injury other than one to a third person, even though recovery would have been permitted had the wrong been directed against the plaintiff.

Unless the plaintiff personally suffered bodily injury as a result of the defendant’s negligence or was in the “zone of danger” and suffered physical injury as a result of emotional trauma, damages for emotional distress were not recoverable in negligence actions. 

This general rule significantly limited the recovery available for mental or emotional disturbances caused by another’s danger, or sympathy for another’s suffering when that suffering was negligently inflicted. 

Plaintiffs traumatized by having witnessed a loved one being injured or killed in an accident could recover for the trauma only if the plaintiffs were also physically injured, or else were so close to the accident that they feared for their own safety. 

As a result of Dillon, the law in California — and now elsewhere — recognizes that bystanders who witness a close relative being negligently injured have a cause of action for negligence and may recover damages for their trauma.

To fill this gap, the Supreme Court in a previous decision articulated three essential limits on a bystander’s recovery for negligently caused emotional distress. 

A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury- producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

Applying these limits, the Supreme Court held that the mother who had not witnessed her son being struck by a car could not recover emotional distress damages because she could not satisfy the second requirement. 

This case likewise turns on the second requirement, that the bystander plaintiff be present at the scene of the injury-producing event at the time it occurs and be then aware that it is causing injury to the victim. 

The question is whether, to satisfy this requirement, the plaintiff must understand not only that a close relative is suffering injury, but also that the defendant’s negligent conduct or omissions have caused the injury.

In answering the question presented, the Supreme Court emphasized that the requirements pertain to just one element of the negligence claim, which is the scope of the duty that an alleged tortfeasor owes to relatives of a victim who suffer emotional distress upon observing an event that injures the victim. 

A plaintiff who can satisfy the requirements will not prevail unless the plaintiff proves not only that the defendant owed the plaintiff a duty but also that the defendant’s breach of that duty caused the plaintiff’s damages. 

There can be no recovery for emotional distress caused by the negligent infliction of injury on a third party unless the plaintiff contemporaneously understands that the injury-causing event is in fact causing injury to the victim. 

Recognizing that the Supreme Court has not previously required contemporaneous awareness of the defendant’s contribution to the injury, as distinct from awareness of the injury-causing event, the question becomes whether the Court should impose such a requirement now. It saw no persuasive reason to do so. 

It is, of course, true that not all forms of emotional trauma associated with harm to a loved one are compensable. The plaintiff must have suffered trauma from perceiving the injury-producing event, itself rather than on viewing or learning about the injurious consequences of the defendant’s conduct. 

But this means only that the emotional trauma must be the result of directly witnessing and understanding that harm is being done — not the result of learning of the harm after the fact. 

A plaintiff is not merely experiencing the results of an injury-causing event when that plaintiff witnesses an accident or other event that has resulted in severe injury to a loved one. 

The emotional trauma that comes from witnessing such an accident exists regardless of whether the plaintiff is aware at the time of the accident of all the individuals or entities that have contributed to the accident through their conduct. 

The telecommunications technology has created more scenarios where potential plaintiffs might witness a loved one being injured.  Thus, the Supreme Court declined to superimpose an additional limitation that would require awareness not only of the injury-producing event.

The Court of Appeal concluded that Downey was “present” at the scene of the car crash because “she contemporaneously sensed auditorily the accident and the fact Vance was injured.” 

Neither precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries. 

Here, Downey alleged that when she was on the phone with her daughter she heard metal crashing against metal, glass shattering, and tires dragging on asphalt — from which she knew immediately that her daughter had been in a car accident. 

Downey has also alleged that she understood that her daughter was seriously injured because she could no longer hear her after the crash and a stranger indicated difficulty in finding a pulse.

LESSONS:

1.         A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury- producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

2.         A plaintiff who can satisfy the requirements will not prevail unless the plaintiff proves not only that the defendant owed the plaintiff a duty but also that the defendant’s breach of that duty caused the plaintiff’s damages. 

3.         There can be no recovery for emotional distress caused by the negligent infliction of injury on a third party unless the plaintiff contemporaneously understands that the injury-causing event is in fact causing injury to the victim. 

4.         Neither precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries.