Motion for Summary Judgment (Judge Randy Hammock)

Transcription

1 Motion for Summary Judgment (Judge Randy Hammock) Case Number: BC Hearing Date: January 03, 2017 Dept: 93 BALBINA OLIVEROS ELIZONDO, Plaintiff, vs. ROADRUNNER AUTO SALES, Defendant. [TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT Defendant Roadrunner Auto Sales s Motion for Summary Judgment is DENIED. The Court considered the moving papers, opposition, and reply. BACKGROUND On June 10, 2015, Balbina Oliveros Elizondo filed a complaint against Roadrunner Auto Sales for negligence and premises liability. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. CCP Section 437c(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and

2 uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 166. DISCUSSION Defendant requests summary judgment on the ground that there are no triable issues of material fact and as a matter of law it prevails. Under the 1st cause of action for negligence, plaintiff alleges that she was severely injured when she was left unsupervised by the open hood of a car, with the engine running. As a result, the distal phalange of plaintiff s right major hand index finger was traumatically amputated when plaintiff reached under the hood of the running vehicle. Defendant breached its duty of ordinary and due care by leaving a customer alone while looking at a vehicle for potential purchase with the hood open and engine operating, without proper supervision and/or warnings, failing to provide

3 clear hazard warnings and maintaining constant supervision of all customers in and about autos with open hoods and running engines on the Road Runner Auto Sales lot. This posed an unreasonable risk of harm to those entering onto defendant s premises, including plaintiff. As the negligence and resultant dangerous condition were committed and caused by a Roadrunner employee acting within the course and scope of his/her employment, negligence and notice of the dangerous condition is/are imputed to defendant. Under the 2nd cause of action for premises liability, plaintiff alleges that defendant knew, or based upon a reasonable inspection should have known, that leaving a customer alone while looking at a vehicle for potential purchase with the hood open and engine operating, without proper supervision and/or warnings, failing to provide clear hazard warnings and maintaining constant supervision of all customers in and about autos with open hoods and running engines on the Road Runner Auto Sales lot posed an unreasonable risk to those entering onto defendants premises, including plaintiff. The dangerous condition was caused by an employee of defendant, when a Road Runner employee failed to maintain proper supervision or offer proper hazard warning and left plaintiff unattended while looking over a car for potential purchase with the hood open and the engine running. As a result, plaintiff sustained a traumatic amputation of her right hand index finger s distal phalange. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998. Generally, a person has a duty to use reasonable care under the circumstances. Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515;

4 Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. CACI An invitor is not, however, an insurer of the safety of all persons on the property. See, e.g., Adams v. Dow Hotel (1938) 25 Cal. App. 2d 51, 54: Jones v. Bridges (1940) 38 Cal. App. 2d 341, ; Mautino v. Sutter Hospital Assn. (1940) 211 Cal. 556, 560-1; Danieley v. GoldMine Ski Associates (1990) 218 Cal. App. 3d 111, 121 (skier lost control of skis and ran into a tree at the edge of a ski run, held to be an obvious danger). The extent of a possessor s duty to use ordinary care to keep premises in reasonably safe condition is based on the foreseeability that the condition will cause injury. Rowland v. Christian (1968) 69 Cal. 2d 108, 119. The general rule regarding liability of a possessor of land under California Civil Code 1714 is discussed in Rowland and its progeny, which hold that the proper test to be applied is whether the possessor of the property acted as a reasonable person in view of the probability of injury to others. There is no duty to warn of an obvious danger but the possessor of land does have a duty to warn an invitee not only of conditions known by him to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. (Citation omitted.) The invitor may assume that an invitee will perceive that which would be obvious to him through the ordinary use of his senses. (Citation omitted.). Beauchamp v. Los Gatos Golf Course (1969) 273 Cal. App. 2d 20, 27. There is no duty to warn him of that which he already knows. (Citation omitted.).

5 Id. at 28. Defendant argues that as a matter of law, it did not owe plaintiff a duty, there was no breach, and leaving the hood up and engine on was not a substantial factor that caused plaintiff s injury. There was the mere happening of an accident, which occurred as a direct result of plaintiff s failure to use common sense around an open and obvious danger. It had no duty to warn of obvious or patent defects or dangers that can be perceived by the ordinary use of one s senses. It was obvious that the engine that plaintiff unexpectedly stuck her finger into was on. Refugio De La Cueva Decl., 36: The running engine with the hood open was not concealed. Plaintiff did not suffer from any conditions that would have impacted her hearing or sight at the time of the incident. See Plaintiff s Depo., 61:5-23. Also, not only was it obvious that the engine was on, but plaintiff testified that she knows more than the average bear when it comes to her knowledge of cars. Plaintiff s Depo., 77:1-5. When asked why she put her finger in the engine, she stated, I don t know. Plaintiff s Depo., 53: In opposition, plaintiff argues that defendant did not conform to the standard of care in the automobile retail sales industry and this conduct was a substantial factor in causing plaintiff s harm. See Lewis R. Linet, Jr., Ph.D. Decl. Further, although defendant claims that the condition was open and obvious, plaintiff was unaware that the engine was running at the time she reached into the engine compartment and she was left unattended. See Plaintiff s Depo., 61:1-4 (Q: At any point in time when you were looking at the Camry, do you recall hearing that the engine was turned on? A: No. ). Plaintiff argues that although defendant may not have a duty to warn, it does have a duty to take precautions against the risk of harm from an obviously unsafe condition. See Osborn v. Mission Ready Mix (1990) 224 Cal. App. 3d 104. Plaintiff also argues that her actions were reasonably

6 foreseeable, and thus defendant owed her a duty of care. In reply, defendant argues that plaintiff s expert s declaration is contradictory in that he appears to be claiming that the sales process requires that the engine be shown to potential buyers yet buyers should not be unnecessarily exposed to a running engine. Defendant argues that it is unclear as to what standard of care plaintiff is alleging was breached. This court finds that Defendant had a duty not to leave plaintiff unattended with the hood up and engine running even if it may not have had a duty to warn plaintiff not to touch the engine. The court finds that it is a question of fact for the jury as to whether defendant (even in respect to the open and obvious risk) acted reasonably in respect to the probability of injury to plaintiff; and whether plaintiff used the property reasonably in full knowledge of any obvious risk. See, Plaintiff s Contested Issues of Fact, Nos The court does not find that the evidence cannot permit any conclusion or inference, other than that she knew the danger, appreciated the magnitude of the risk, and knowingly made this choice of ways. Beauchamp, supra, at 34. Additionally, Plaintiff raises a triable issue of material fact as to whether she was aware that the engine was on, and whether she acted reasonably in putting her hand in the engine area. See, Plaintiff s Contested Issues of Fact, Nos Accordingly, the motion is DENIED. Defendant is ordered to provide notice of this ruling. IT IS SO ORDERED. DATED: January 3, 2017 Randolph M. Hammock

7 Judge of the Superior Court