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.