Recently, a California Court of Appeal addressed whether a lower court properly granted summary judgment in favor of the defendants, a supermarket and a contractor involved in sidewalk construction, in a premises liability lawsuit. At issue in this case was whether the condition of the sidewalk outside the market was a dangerous condition. This first step in the analysis also required consideration of whether the condition was open and obvious, since property owners are not generally liable for those conditions that a reasonable person would avoid.
Plaintiff Jessica Overwise brought a premises liability lawsuit against Vons Companies, Inc. and John M. Frank Construction, Inc. Ms. Overwise was injured outside a Vons supermarket in Pacific Palisades when she stepped on the edge of the curb near a warning strip and twisted her ankle, falling forward and suffering a broken wrist and bruising over her entire body. She filed a lawsuit against Vons, alleging premises liability and negligence, and then she amended the complaint to add the contractor responsible for constructing the sidewalk, Frank Construction.
Both Frank Construction and Vons moved for summary judgment. Frank Construction contended that Ms. Overwise alleged a design defect rather than a construction defect. Vons argued that the warning strip where Ms. Overwise fell was not a dangerous condition as a matter of law, and if it was, it was open and obvious, or a trivial defect.
In support of their summary judgment motion, Vons submitted Ms. Overwise’s deposition testimony and a declaration from a mechanical engineer who performed accident reconstruction analysis. Vons also submitted color photographs of the scene of the accident.
Ms. Overwise alleged that Vons allowed Frank Construction to install the warning strip on the curb, making the curb invisible to customers leaving the store. She argued that the yellow warning stripe, patterned as required by the California Building Code to provide warnings to the visually impaired of the boundary between the sidewalk and the roadway, did not provide notice of the elevation change when viewed from above. In support of her opposition, Ms. Overwise presented her deposition testimony, the same color photographs Vons submitted, and the declaration of her expert witness, an architect and forensic consultant.
The trial court granted the motions for summary judgment on behalf of Vons and Frank Construction. The court stated that the evidence showed the area where the asphalt parking lot met the pedestrian walkway was not a dangerous condition, and even if it was, this danger was open and obvious. Judgment was entered against Ms. Overwise and in favor of Frank Construction and Vons. Ms. Overwise appealed.
The appellate court stated that property owners are required to use ordinary care to make their property safe for invitees. Conditions that present an unreasonable risk to others are dangerous, and the owner must use care to make them safe or give a warning such that harm can be avoided. However, property owners are not liable for harm caused by dangerous conditions that are obvious or should have been observed by an individual using reasonable care.
Here, the appellate court stated that the trial court found the condition – the change in elevation between the warning strip on the sidewalk and the asphalt – was not dangerous. If it were dangerous, the trial court found the condition was open and obvious. The appellate court rejected Ms. Overwise’s contentions that the trial court erred in these findings.
While Ms. Overwise argued that her expert’s testimony and her own deposition testimony made clear that a dangerous condition existed that was not open and obvious, the appellate court found the trial court properly found that there was no triable issue in light of the photographic evidence. The court stated the rule that in a premises liability case, a trial court must independently evaluate the circumstances surrounding the accident. When photographs make clear a condition was not dangerous or was open and obvious, expert testimony cannot be used to create a triable issue of fact.
Turning to the property owner’s duty to warn of potential hazards, the court also rejected Ms. Overwise’s contention that the warning strips cannot be used to warn of the change in elevation because they are not meant for that purpose. The California Building Code requires that a warning strip let visually impaired people know of a hazard, and in this case the hazard was a roadway.
In conclusion, the court stated that the condition at the scene of the accident was in fact open and obvious. The evidence supported this finding, and the trial court properly granted summary judgment in favor of defendants Vons and Frank Construction. The judgment was affirmed.
The premises liability attorneys at Sharifi Firm help accident victims throughout Southern California. We are available for a free consultation. Contact our office at 1-866-422-7222.
More Blog Posts:
California Court of Appeal Affirms Holding in Favor of City Because Minor Defect in Sidewalk was Trivial, Southern California Injury Lawyer Blog, July 15, 2016
California Court Finds Plaintiff Pursuing Premises Liability Claim Did Not Prove Property Owner Knew of Dangerous Condition of Stairwell, Southern California Injury Lawyer Blog, February 11, 2016