Employee’s Negligence Trumps Owner of Premise’s Knowledge of Dangerous Condition Creating Triable Issues of Fact

In premise liability cases, a tried and true defense to a customer’s slip and fall action was to argue that the spillage or other dangerous condition happened before the business knew about the spill or other condition that caused or contributed to the customer’s injury.

Recently, a California appellate reversed summary judgment in favor of a defendant jewelry store when the plaintiff established an inference that the business owner or its employees may have caused cleaning fluid to have been spilled on a backroom floor that was only accessible to plaintiff to the defendant store owner’s employees. The appellate court found that when the employee can show sufficient facts to create a reasonable inference that the store owner or the store’s employees caused the dangerous condition, notice of the condition is presumed, thereby preventing summary judgment.

The appellate court admitted that the facts were unusual in that the typical case, the customer has no idea who caused the spill and cannot prove that it is more reasonable to believe the store’s employees, as opposed to another customer, caused the dangerous condition.

Why the case certainly does not mark the end of the defense of lack of notice, it does make defending premises liability claims more difficult where the plaintiff can show either that the store or a store employee caused the dangerous condition or can at least show that a reasonable inference could be drawn that a store employee, as opposed to a third party, caused the dangerous condition.

And just because summary judgment was defeated does not necessarily mean that the trier of fact will find for the plaintiff. If the store is able to show at trial that more than just store employees had access to area the where plaintiff and had access to the cleaning fluid plaintiff slipped on, the store owner may still be able to defense the claim on the merits.

But the case does serve as a reminder of the importance of a thorough fact investigation into the accident. The more people that had access to the area where the fluid was or who could have spilled the fluid, the less likely a court would find a “reasonable” inference existed that a store employee caused the dangerous condition. And, in cases where it is clear that the employee caused the spill that the customer slipped on, the claim will likely be decided on agency or “respondeat superior” rather than on notice. There, the issue will be how reasonable and how quick the store’s response was to clean up the spill and whether there were adequate warnings, as these defenses will decide the case over a claim that the store lacked sufficient notice of the dangerous condition. In sum, employees can be more dangerous than you think to the defense of slip and fall claims.

Smithing Gold: Goldsmith Court Holds Automated Computer-Generated Evidence Is Admissible

Three areas of law affect insurance claims. They are (1) substantive law, which creates the legal right to make a claim such as creating the legal elements necessary to make a valid claim; (2) procedural law, which provides rules regarding how and when a claim must be be lawfully made; and finally (3) evidence law, which provides rules regarding how one must prove (or disprove) a claim or a defense.

A recent problem in evidence law has been whether computer-generated evidence may be admissible in court. Computer-generated evidence is often attacked for lacking foundation, that is, that the computer-generated information is not what it purports to be. If this attack fails, it is often attacked as inadmissible hearsay in that the computer record “an out-of-court statement offered to prove the truth of the matter asserted.”

A recent criminal infraction case made its way up from the California trial court’s appellate division to the District Court of Appeal addressing these issues. The Goldsmith court held that computer-created evidence is presumed admissible.

The holding is important because it has implications far beyond nailing red light runners who are caught on camera, which was what the case was about.

In Goldsmith, the defense argued that the computer-generated photos and video showing the car running the red light was inadmissible because there was no evidence that computer equipment used to capture the photos and videos were accurate or reliable–an attack on the foundational requirements to have evidence admitted. The court agreed that Evidence Code, § 1401(a) required authentication of photos or video before they may be received in evidence, but found that merely required the party offering the evidence to show that the photo or video is what it purported to be or the establishment of such facts by any other means provided by law as per Evidence Code, § 1400(b).

Evidence Code, §§ 1552 and 1552 establish a legal presumption that printed representations of computer information and of images stored on a video or digital medium are representations of the computer information and images that they purport to represent. Based on this, the court concluded that the images and information, such as the date, time, and location of the violation and how long the light had been red when each photo was taken and imprinted on the photographs were presumed to accurately represent the digital data in the computer. Thus, the court concluded that Evidence Code, § 604 required the trier of fact to assume the existence of these presumed facts.

That the images were accurate depictions of the data stored on the computer did not end the inquiry. To be admissible, the evidence still had to be accurate and reliable. As to this issue, the appellate court deferred to the California Supreme Court’s holding in People v. Martinez (2000) 22 Cal.4th 106, at 111-112, 119-120, and 132. In Martinez, the Supreme Court held that testimony regarding the acceptability, accuracy, maintenance, and reliability of computer hardware and software was not a prerequisite for the admission of data stored on a computer.

In substance, the Supreme Court in Martinez and the appellate court in People v. Goldsmith (2012), held that California courts presume that computer-generated data that is retrieved from a computer is accurate and reliable. This presumption could be rebutted however through cross-examination. Note that the Goldsmith court found that this presumption would not apply to data inputted by humans. It would be limited to situations where the computer were set to automatically record the evidence without human intervention.

Where the data automatically records the evidence, the evidence is presumed admissible. The party opposing such evidence must prove to the trial judge that the evidence is authentic authenticity, accuracy, and reliability, and usually trial courts will let this evidence and then allow it to be attacked by cross-examination, etc., i.e., these factors go to the weight of the evidence as opposed to its admissibility.

Next, the Goldsmith dealt with the hearsay problem, namely, that the computer-generated photos and video were offered to prove the matter asserted, namely, that Goldsmith ran the red light. The Goldsmith court found no hearsay problem by finding that the computer-generated data and the data printed on the photographs by the computer did not fall within California’s definition of hearsay (Evid. Code, § 1200), since the purported “statements” were not made by a “person” based on the California Evidence Code’s definition of what a “person” is. Instead, the court viewed the computer-generated information as “demonstrative evidence,” which is “not hearsay.”

The point? Let’s say a business automatically stores and records information on its computers. Goldsmith may require that this evidence is admitted, leaving the opponent of the evidence to attack on only how credit to give this evidence, as long as the data is not manipulated by or entered by people.

Imagine the possibilities. If an insured’s business tracks information about employees automatically, this computer-generated data is going to be admitted into evidence for better or worse, as long as it is relevant to some issue at trial. Trial counsel will only be able to attack the data’s credibility, not its admissibility. This will affect the settlement value of a claim, summary judgment/adjudication motions, settlement, and trial outcomes.

In sum, Goldsmith teaches that courts are catching up on technological advances. They are thus reluctant to waste valuable trial time arguing over why computer-generated information is reliable and accurate absent compelling proof in a particular case. The best way to avoid the evidentiary presumptions of admissibility would be to show that the data was entered by a person or likely was manipulated by a person entering or retrieving the data. Absent such proof of tampering, courts are going to find that computer-generated and stored information is admissible because it is automated and not subject to manipulation by people. Trial counsel will be limited to attacking the relevance of the evidence and its credibility. Goldsmith signals the end to most attacks on such evidence’s admissibility in the first instance, which is an issue of law subject to the trial court’s broad discretion.

Hotel Liability For Not Supplying Bath Mats—Lack of Similarity of Past Accidents Supports Summary Judgment


By John Armstrong

A recent case out of California’s Fourth District Court of Appeal involving Omni Hotels shows that a good investigation helps support summary judgment—even in California where such summary disposition  of cases are hard to come by.

For adjustors involved in hotel claims, however, it is the last two pages of the opinion that are of interest. The trial court granted summary judgment for defendants that a hotel was not liable for premises liability or under any of the products liability theories advanced for failing to supply bath mats. The trial court however granted plaintiff a motion for new trial on whether the hotel was negligent in either not investigating further or not communicating more widely within the hotel chain the reports of bathtub accidents at Omni hotels. 

The appellate court affirmed the summary judgments, but reversed the trial court’s grant of a new trial to plaintiff based on plaintiff’s evidence of past accidents. The appellate court looked at the hotel incident reports and determined that these did not show the required “substantially similar accidents” and lacked detail about the conditions of or in the bathtubs, and lacked details about the medical conditions of the guests who were reported to have fallen in the hotel’s bathtubs. The court found the reports only provided “speculative or conjectural evidence” that Omni knew or had reason to know of a dangerous condition surrounding its hotel bathtubs.

The court also rejected the argument that hotel’s past reports of bathtub accidents necessarily put on the hotel on a “heightened duty of inquiry” to find out from the bathtub manufacturer, Kohler, if Kohler was aware of similar incidents with its bathtubs. Though the plaintiff alleged he could bring “ample” evidence that Omni had both actual and constructive knowledge that tubs in its hotels were dangerously slippery, he failed to support these claims with anything but his anecdotal witness testimony and opinions. The appellate court found this evidence insufficient to create triable issues of fact.

The lesson? Courts are looking at the foundation of expert declarations mare carefully to see if the evidence relied on is legally sufficient to support having a trial. The appellate court recognized that bathtubs are inherently slippery, meaning that for a plaintiff to impose liability against the hotel, he’d have to prove that either the hotel made dangerously more slippery or was on notice that its tubs were more slippery than other tubs—a very difficult burden. Usually, if there is a clash of expert declarations, most courts will hold a trial and let the jury decide, which is probably why the trial court granted the motion for new trial. The appellate court reversed however because it carefully examined plaintiff’s evidence and found that it was not legally or logically compelling to prove the claim that Omni knew its Kohler tubs were more slippery than other tubs—“even if” the hotel had other reported tub accidents. Implicit in the court’s decision was that it would be likely for any large hotel chain to have tub accidents since they are slippery and since the general public, including persons with a variety of medical conditions, could cause or contribute to causing tub accidents.

The moral? You can get summary judgment granted in California when the plaintiff’s expert’s opinions are based on anecdotal evidence, educated guesses, or are otherwise lacking foundation.