California Code of Civil Procedure § 437c read in relevant part, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding…”

Essentially, if a motion for summary judgment is granted the trial court is dismissing the case and not allowing the parties to proceed in court. The trial court does not always make the final decisions on these types of issues. A party to an action can appeal or seek a ruling of a higher court, known as an appellate court.

A party to an action can appeal or seek a ruling of a higher court, known as an appellate court. For example a recent ruling by the The Court Of Appeal Of The State Of California Second Appellate District Division Five reversed a lower trial court’s ruling regarding a Motion For Summary Judgement. In Jacinto v. Caruso Management Company, the plaintiff sued a property management company for negligence and premises liability after tripping on a wheel stop concrete block in a disabled parking area next to the pedestrian walkway. The wheel stop was five inches high and painted blue with the words “CHASE” on it. The ramp next to it was made of white concrete, the pavement was black, and the accessible walkway was blue.

This ruling by this California appellate court is an unpublished opinion, meaning it is only binding on the case which they ruled. Although the ruling is unpublished, it does shed light on the summary judgement rules when applied to premises liability.

On the day of the plaintiff’s fall, her daughter parked to the left of the wheel stop. The plaintiff got out of the passenger side and walked into the bank, looking at the bank doors. When she came out of the bank, she walked down the ramp and tripped at the bottom of the ramp by the wheel stop.

The defendant argued that it owed her no duty because the hazard was open and obvious and because it didn’t know about the possible danger. It also argued that there was no triable issue of material fact about whether the wheel stop had caused the fall. In response, the plaintiff argued that the dangerousness and the open and obvious nature of the hazard as well as the defendant’s knowledge were triable issues of fact. She argued the wheel stop caused the fall.

The trial court granted summary judgment on the grounds there was no issue of fact as to causation. The plaintiff appealed. The appellate court explained that there were several disputed facts. For example, a state-licensed contractor submitted a declaration stating that the wheel stop was readily noted by an ordinary person, the plaintiff could have avoided it, and its placement didn’t violate any laws or regulations. The blue color was standard. A civil engineer retained by the plaintiff argued that the placement violated the ADA accessibility guidelines and the American Society of Testing and Materials‘ standard practice for safe walking conditions, among other things. He declared that the closeness of the blue walkway and wheel stop made it hard to see the wheel stop.

The appellate court explained that premises liability is a type of negligence. An owner of property in California owes a duty to use ordinary care in managing the property in order to avoid placing people at an unreasonable risk of harm. In this case, the defendant argued that it owed no legal duty to the plaintiff because it had no notice of the danger.

The court pointed out that the defendant inspected the lot twice a day, and the plaintiff’s expert had stated the wheel stop in the lot was a dangerous condition. Therefore, the defendant would have constructive notice, at least for purposes of a summary judgment motion. The appellate court also explained that the plaintiff’s expert had called the area visually confusing because of the blue paint. Since there was conflicting evidence, the defendant didn’t meet its burden on summary judgment of proving the plaintiff couldn’t satisfy the element of duty.

The appellate court also found the defendant’s causation arguments had no merit. A plaintiff needs to show a substantial link between an action or omission and her injury. However, whether the defendant’s actions actually caused the plaintiff’s injury is a factual question. The plaintiff had testified she either tripped or caught her foot on the wheel stop. The defendant tried to show an inconsistency in her testimony, but the appellate court found none. The order granting summary judgment was reversed.

If you’ve suffered injuries due to a slip and fall on somebody else’s Modesto property, The Bogan Law Firm, A Professional Corporation may be able to represent you in a premises liability lawsuit for damages. Contact us at (209) 565-3425 or via our online form.

Blog posts

Modesto Area Car Accident: Negligence to Blame for Death of a Child, January 12, 2014
Dog Bite Liability and Halloween, October 28, 2012

Busiåness and Professions Code section 25602.1 reads, “a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, pursuant to Section 23300,. . . who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage . . . to any obviously intoxicated minor (emphasis added) where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.” (Bus. & Prof. Code, § 25602.1.)

This means that the provider of alcohol must use reasonable care to ensure the person receiving the alcohol is not an “obviously intoxicated” minor. (Schaffield v.Abboud (1993) 15 Cal.App.4th 1133, 1141.) Under this section the term “minor” means someone under 21. (Rogers v. Alvas (1984) 160 Cal.App.3d 997, 1004.)

Recently, a jury in Southern California awarded $40 million in damages to the parents of a 33-year-old man who was stabbed to death in an argument at a Riverside TGI Friday’s. The man was at the restaurant with his girlfriend when the girlfriend’s son, a 20-year-old, approached with his friend, who was 27. The man and the girlfriend’s son got into a fight, and the man was stabbed. Officers arrested the girlfriend’s son and his friend. The man died after the fight at Riverside Community Hospital.

This is one of Riverside County’s biggest civil court verdicts ever. In the criminal case, the 27-year-old was charged with murder but pled guilty to assault with a deadly weapon. The girlfriend’s son was charged with assault with a deadly weapon and also pled guilty.

The decedent’s parents filed suit against both TGI Friday’s and the restaurant operator in civil court. They argued that the restaurant purposely didn’t check the ID of the underage assailant and kept providing him with alcohol after he was obviously drunk.

The jurors found the restaurant operator 55% responsible for the death, while the attackers were found 45% responsible. The verdict form shows that the award was for the loss of their son’s “love, companionship, comfort, and care,” among other things.

Remember generally, the bar owners cannot be held liable, but here, because there were minors involved, other rules apply. Liability is possible when the bar serves minors alcohol who are visibly drunk already. In those cases, someone who is injured because the business served an obviously drunk minor can sue the business for compensation for a number of losses. In this case, the plaintiffs were able to show that the minor was visibly drunk because he ordered the equivalent of 12 servings of alcohol in 30 minutes.

Losses that can be claimed from the restaurant in a situation similar to this include medical bills, emergency care, lost wages, permanent disability, the cost to repair or replace property, and pain and suffering. In the context of wrongful death, parents or children can recover for loss of love or companionship. There are strict statute of limitations for filing a claim, so it is always best to consult with an attorney regarding these types of claims.

Additionally, another theory relevant to this lawsuit was negligent security. Under California law, when there is a heightened foreseeability of third-party criminal activity, a business proprietor owes an obligation to provide guards or other security measures to protect the safety of patrons.

A duty of affirmative action only applies to a restaurant, however, if the criminal action can be reasonably anticipated. For example, if the restaurant was regularly the site of violent bar fights, it might have had a duty to protect against the stabbing of the decedent, separate from its duty not to serve an obviously drunk minor. In this case, the lawsuit alleged a pattern of assaults at the restaurant and a lack of security cameras.

If you’ve suffered the unexpected loss of a loved one due to someone else’s negligence or reprehensible conduct in Modesto, The Bogan Law Firm, A Professional Corporation may be able to represent you in a wrongful death lawsuit for damages. Contact us at (209) 565-3425 or via our online form.

Blog posts

Modesto Area Car Accident: Negligence to Blame for Death of a Child, January 12, 2014
Dog Bite Liability and Halloween, October 28, 2012