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.

California Revises Its Summary Judgment Statute: Lawyers And Claims Adjusters Be Aware!

By John Armstrong

California has a lot of laws, many of which are traps for the unwary–even for lawyers. Of the more interesting changes, California’s Legislature significantly modified its Summary Judgment Act, Code of Civil Procedure, § 437c.

Traditionally, summary judgment could only be had if you could knock at all of plaintiff’s causes of action or if you could not knock all of a defendant’s denials and defenses. For example, even if one cause of action or defense had no merit or evidentiary support, you couldn’t get summary judgment.

To fix this limitation, the California Legislature expanded California’s Summary Judgment Act to allow summary “adjudication” of a single cause of action or a single affirmative defense. No longer did you have to knock out the entire Complaint or Answer to get a summary judgment type disposition of claim or defense. The major limitation of this expansion however was unless you could knock out the entire claim or defense, the summary adjudication would be denied.

Often a case may turn on a single legal or evidentiary issue that is not “essential” to a single cause of action or defense. The problem lawyers faced was that there was no procedural mechanism to get a court to decide it such an issue–even though it’s resolution would help settle the case. Sometimes trial courts would allow parties to stipulate to trying legal or evidentiary on stipulated facts, such as trial on a liability alone. Most judges wouldn’t do this, unless you were in civil complex, where the need for such procedures is necessary to simplify complex cases.

Now, the somewhat informal procedure I just mentioned (and which this writer has actually participated in) has been codified at Code of Civil Procedure, § 437c, subdivision (s). Upon the parties’ stipulation that the court’s decision on a single legal issue or claim for damages will further the interests of judicial economy or reduce the time consumed by trial, or will significantly increase the parties’ ability to settle, trial courts may summarily adjudicate a single legal issue or claim for damages–even if such disposition will not completely dispose of a cause of action, an affirmative defense, or an issue of duty.

There are, however, limitations. The trial court has to agree with the parties’ stipulation. If doesn’t, the trial court is not obligated to summarily adjudicate the stipulated issue. Essentially, the trial court has to agree with the litigants that the procedure is a good idea and be willing to take on the task of a deciding a motion that won’t completely eliminate a claim or a defense. I predict that this procedure will be invaluable in complex civil case, and especially in construction defect or mass tort cases where a summary decision could get parties to re-evaluate the settlement positions.

Subdivision (s) is an experiment. The sun sets on this revision to California’s Summary Judgment Act on January 1, 2015. Apparently, the Legislature is experimenting, however, this writer thinks that subdivision (s) is likely here to stay. That said, subdivision (s) is something to be aware of when settlement talks stall.