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.