Articles Posted in Slip and Fall

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Maggie Black Testimony

Ms. Black has testified in relevant part as follows:

She went to the back of the store and took a right turn into the back aisle. She was on her way to the dairy case containing yogurt. There were multiple XYZ Market employees re-stocking in the area of her fall before she fell, and there were boxes everywhere on the sales floor. There were three to five employees re-stocking the aisles adjacent to the area where she was walking just before she fell. There was a woman re-stocking the dairy section about 6′ away when plaintiff fell. Maggie Black stated in answers to written discovery that there were XYZ Market employees “within 10 feet” of where she fell. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

•The woman stocking in the dairy section was no more than five to six feet away from where plaintiff fell.

•She walked by the double doors on her way to get yogurt, and she also saw a male XYZ Market employee come out from the double doors at the back of the store as she walked by.

•As Ms. Black turned into the back aisle, she noticed a XYZ Market clerk stocking meat in the butcher department.

•The clerk in the meat department was about 10′ away (behind her) when she turned into the back aisle.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

FACTS
THE INCIDENT

The incident occurred on March 24, 2005. As she testified at her deposition, Maggie Black, a 38-year-old mother of two children (ages 4 years, and 16 months), was shopping at the Sacramento XYZ Market. Plaintiff fell at about 8:45 a.m. As she was walking with her 4-year-old looking for yogurt, she suddenly stepped on something wet and slippery on the floor. She lost her balance and fell face down, striking her right elbow. She is right handed. The fall occurred near the dairy Blacker located to the left of some double swinging doors that lead back to public restrooms, storerooms, and employee-only areas, such as the employee break room. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market claims it found no evidence of moisture on the floor, but admits for the purpose of this motion that some wet or slippery substance was on the floor. For the Court’s background information, independent witness Mike Burns testified in deposition that he saw Ms. Black walking with her son, and that she suddenly appeared to be slipping and walking in place as if on ice. Her feet slipped out behind her, and she fell face down. Ms. Black testified that she noticed her pants were wet after she fell and spent time sitting on the XYZ Market floor where she fell.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment
INTRODUCTION

Plaintiffs Maggie and Charles Black oppose XYZ Market’s summary judgment motion on two primary grounds:

First: There were multiple XYZ Market employees working on the floor near the area where plaintiff slipped and fell on a wet substance, both at and before the time of plaintiffs fall. One of these employees was five to six feet from the substance on which Maggie Black slipped. XYZ Market’s written standards state that it is every employee’s responsibility to detect and correct slip and fall hazards, not just the low level clerks who do the sweep log.

Plaintiff alleges the various employees working in the area of her fall failed their responsibility. There is a triable issue of fact whether these employees used reasonable care in their failure to detect and wipe up the wet area on which plaintiff fell. A jury could also find that these employees actually created the condition through their restocking activities, in which case notice to XYZ Market is presumed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Second: XYZ Market representatives told Charles Black that there was videotape of the area where plaintiff Maggie Black fell, and that they were reviewing the tape. Once litigation commenced, XYZ Market stated that it had no videotape.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

Plaintiff’s Claim for Emotional Distress Damages Cannot be Bolstered With Evidence of Her Husband’s Rare and Potentially Fatal Lung Disease

Plaintiff seeks to introduce evidence that her husband was diagnosed with a rare lung disease in June 2005 that either will require a lung transplant or may be fatal to bolster her claim for emotional distress damages as a result of the injury she sustained in her fall. Little is known about plaintiff’s husband illness for several reasons, not the least of which is that he is not a part to this lawsuit and, therefore, no discovery has been conducted on the illness. We do know from plaintiff’s deposition testimony and recent reports from counsel that plaintiff’s husband has been able to work to date.

Specifically, plaintiff claims that the illness bolsters the emotion distress associated with her injury because she now has been told that she can no longer work as a dental hygienist, and she may some day need to support her three young children alone without relying on her chosen profession. Despite the parties best efforts to meet and confer over this issue, discussions which resulted in a stipulation to exclude much evidence at trial, this issue remains in dispute.

Evidence of plaintiff’s husband’s unfortunate illness should be excluded at trial. Not only is the health of this nonparty irrelevant to the issues in this case, there is no foundation for the evidence, since plaintiff has not designated the requisite expert to testify about the rage lung disease.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

ABC HOTEL DISPUTES THE EXTENT OF PLAINTIFF’S CLAIMED INJURY AND DAMAGES

Expert discovery has not been completed for good reason. The parties have continued to work together to obtain all of the records from University Medical Center where plaintiff not only sought a second opinion and underwent additional surgery and treatment, but where she continued to participate in physical therapy for her hand and wrist. Although some records were obtained from UMC (after months of delay), those records referenced additional records that were not produced by the Medical Center. Consequently, an additional subpoena was required.

These records are critical from the defense perspective since they will provide insights into how plaintiff is progressing with the use and function of her left wrist and hand, particularly given her new claim that she can never again work as a dental hygienist. Moreover, both plaintiff’s and ABC Hotel’s experts will rely on the additional records requested from University Medical Center, and therefore, expert depositions cannot take place before those records are obtained.

However, subject to expert testimony, ABC Hotel anticipates that it will dispute the extent of the injuries and damages alleged by plaintiff.

Plaintiff’s Claimed Residual Pain Is Not the Result of the Injury She Sustained in Her September 2005 Fall

Following surgery to repair her broken wrist, plaintiff’s fracture was well healed. As a result, her subjective complaints of residual pain and discomfort are unusual based on the proper repair and healing of this type of fracture and lack of objective findings. Indeed, there is no record of swelling and no redness in the area of the fracture. In addition, there is no need for further treatment, and plaintiff’s symptoms should resolve with the passage of time.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

In Delk v. Mobilehomes, Inc. (1953) 118 Cal.App.2d 529, the plaintiff was injured while doing work underneath a mobile home belonging to the defendant. A support jack had given way on account of damp ground conditions, leading to the lowering of a support beam which thereby struck plaintiff. The trial court directed a verdict in favor of the defendant, and the Court of Appeal affirmed. The Court held that the ground conditions were open and obvious, and that defendant was not liable for injuries therefrom. The Court held (at 532-533):

An invitor is not required to give an invitee warning or notice of obvious danger but is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

In Powell v. Stivers (1951) 108 Cal.App.2d 72, the plaintiff tripped and fell over an electrical cord lying on the floor, nestled between a piano and the wall. The plaintiff filed suit against the building owner, claiming that the owner had a duty to warn of or remove the cord from the ground. Defendant moved for a nonsuit, which the trial court granted. The Court of Appeal affirmed, finding that the defendant could not be held responsible for a condition that would be apparent to others, and that the electrical cord was patent, an open and obvious danger. Id. at 73-74.

Based on well-established precedent, ABC Hotel owed no duty to warn plaintiff of the location of her and her companions’ seven to eight pieces of luggage because they were open and obvious to any reasonable person using reasonable care to observe their environment (e.g. watching where one is walking). The accident occurred at approximately 4:30 p.m. of a summer afternoon in September (pre-daylight savings change).

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The law involving trip and fall actions is well settled, and in fact most of the recent published decisions in this area have been made after summary judgment or as matter of law. For example, in Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, the plaintiff was injured after skiing down a slope, falling, and sliding into a tree. The plaintiff sued for premises liability, alleging that the defendant had either a duty to warn of the tree, or a duty to remove the tree. The defendant filed a motion for summary judgment on the ground that it owed no duty to warn of, or cure, dangerous conditions which were open and obvious. The trial court granted the motion, and the Court of Appeal affirmed. The Court held as follows (at 121-122):

Because the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which is obvious to him in the ordinary use of his senses … [Defendant] was under no duty to warn that this particular tree … presented a danger to plaintiff wife. The tree itself provided a warning to plaintiff of the implicit danger of a collision with it. A fortiori, [defendant] was under no duty to remove it.

In Curland v. Los Angeles County Fair Assn. (1953) 118 Cal.App.2d 691, the plaintiff was injured after tripping over a pipe about one inch in diameter and protruding 7-10 inches above the ground. The plaintiff did not look down at the ground at any time before he fell.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The Luggage Was Open And Obvious
There is no duty on behalf of the property owner to warn of or repair a condition that is open and obvious to the reasonable person. Hanson v. Luft (1962) 58 Cal.2d 443, 445 [duty to warn of defects not applicable where defect open and obvious]; Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal. App. 4th 1578, 1590-1591 [where danger was obvious, no duty to warn or to make property safe]; Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408 [same]; Krognos v. Pacific Gas & Electric Company (1992) 7 Cal.App.4th 387, 393 [ if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition ]

DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [ it is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant ]; Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 90 [ it is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both. ] As one learned author explained:

If the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning. (See, 6 Witkin, Summary of California Law (9th ed.) Torts, § 930, p. 301.) (See Part 5 of 8.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

ABC HOTEL IS NOT LIABLE FOR PLAINTIFF’S FALL OR HER INJURY
ABC Hotel Owed No Duty To Warn Plaintiff Of The Location Of Her And Her Companion’s Luggage In The Hotel Suite

The duty to warn extends only to those conditions (1) which are dangerous and (2) which the defendant created or which the defendant had control over and sufficient notice in advance of any accident. Ortega v. Kmart Corporation (2001) 26 Cal.4th 1200, 1212. The duty to warn does not extend to conditions which are open and obvious. Daniely v. Goldmines Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.

The Stack Of Luggage Did Not Constitute A Dangerous Condition

Slips, trips and falls “are not so likely to be the result of negligence as to justify a presumption to that effect.” Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 195. It is, therefore, incumbent upon plaintiff to.prove, as an essential element of her claim, that the condition upon which she fell was dangerous or defective. Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.

A condition is considered dangerous or defective only if it presents an unreasonable risk of harm to persons using the premises in a foreseeable manner. Akins, supra, 67 Cal.2d at 193; BAJI 8.21. In other words, a dangerous condition must be one which a person of ordinary prudence should have foreseen would appreciably enhance the risk of harm. Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

STATEMENT OF FACTS

On Saturday, September 2, 2005, plaintiff and her husband flew into town with another couple to celebrate plaintiff’s 40th birthday. The two couples planned to share a suite for one night at the ABC Hotel. Upon their arrival at the Hotel, they had some food and alcohol at a Hotel bar and went swimming while they waited for their room.

Later that afternoon, the four arrived at their suite. The hotel suite is a bright room, well illuminated by natural light from large picture windows and bright decor comprised of white couches, white carrera marble table tops on bright turquoise table bases, light gray and white walls, and grey carpeting to better reflect the light. Their collective luggage was transported by a bellhop, who placed the luggage in the suite. In total, there were seven or eight pieces of luggage, all of them black in color.

Based on the collective deposition testimony, plaintiff and her companions brought the following luggage: (1) plaintiff brought a duffle bag; (2) Mark Smith brought a garment bag, computer bag, and his wife’s breast pump bag; and (3) Alice and Randy Chin each brought a roller bag with an accompanying duffle bag.

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