Schall v. Marina Admiralty Co. CA2/2 ( 2022 )

Filed 9/28/22 Schall v. Marina Admiralty Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JANE SCHALL, B312918
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV37031)
v.
MARINA ADMIRALTY
COMPANY et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael E. Whitaker, Judge. Affirmed.
Law Offices of Brian D. Witzer, Brian D. Witzer and Eric R.
Canton for Plaintiff and Appellant.
Alderman & Hilgers and Allison R. Hilgers for Defendants
and Respondents.
Jane Schall (appellant) appeals from a judgment entered
after the trial court granted summary judgment in favor of
Marina Admiralty Company and E&S Ring Management Corp.
(E&S) (collectively respondents) on appellant’s claim of
negligence (premises liability) against them. We find no error
and affirm the judgment.
FACTUAL BACKGROUND
Appellant is a resident of an apartment complex called
Mariners Village, which is owned and operated by respondents.1
Appellant resided at Mariners Village from 2014 or 2015 until
the time of the incident. On November 28, 2017, in the early
evening, appellant was walking with her dog from a nearby
harbor channel to her apartment. They proceeded to a bridge
extending over a water feature on the subject property.
Appellant described the bridge as “a wooden bridge, like a
pathway that leads from a driveway into the one section of the
apartment buildings. There were—It was low ropes on each side,
trees—surrounded by trees.”
As appellant and her dog were crossing the subject wooden
bridge, someone was coming the other way. Appellant recalled
moving over “a little bit,” as she had done in the past when she
encountered another person while crossing the bridge. The next
thing appellant could recall was that she could see her feet over
her head. She recalled the bang of her head against the rocks,
that there was a lady there and she was wet.
1 E&S is a property management company and is an agent of
Marina Admiralty Company, which is the owner of the Mariners
Village apartment complex.
2
As she was walking across the bridge, appellant’s dog was
on her left and she moved to her right to pass the lady on the
bridge before she fell. Appellant did not remember if her foot
went off the side of the bridge when she moved to the right, but
her body went over the top of the rope. Appellant’s dog did not
fall off the bridge with her.
Appellant testified that the incident occurred in the early
evening, when it was “dark” or “darkening.” Although it was
dark, appellant was used to walking on the bridge and did not
recall having any trouble seeing at the time of the incident. She
admitted that nothing was blocking her view of the bridge.
Appellant walked that way often, estimating that she
crossed the bridge approximately 15 times per month. Appellant
stated that the wooden bridge was one of the ways to get from her
building to the channel, where she liked to walk. There were
many other paths and bridges throughout the complex which she
could have used as alternate routes that evening.
Appellant testified that she felt something was wrong with
the bridge at the time she fell, that “the rope was defective
and . . . it was in a weird place.” Appellant had never used the
rope previously as a handrail or anything else. Appellant did not
know anyone else that had fallen off the bridge.
PROCEDURAL HISTORY
Appellant filed her complaint for negligence (premises
liability) against respondents on October 16, 2019. On
December 13, 2019, respondents filed an answer containing a
general denial and 12 affirmative defenses.
3
Respondents’ motion for summary judgment and
supporting evidence
Respondents filed their motion for summary judgment on
December 22, 2020. The motion was accompanied by a statement
of undisputed material facts and an appendix of evidence.
Among respondents’ evidence was the declaration of Mark
Wagner. At the time of his declaration, Wagner was the
president of Ring Financial, the parent company of E&S. Prior to
working for Ring Financial, Wagner was employed by E&S from
approximately February 1987 to March 2019, when he began
working at Ring Financial. One of his job titles, for
approximately two and a half years, was manager of Mariners
Village. At the time of the subject incident, Wagner was the vice
president of asset management for E&S. Wagner was very
familiar with the property at issue and had visited it on hundreds
of occasions.
Wagner provided some background regarding the property.
Mariners Village is a nautical-themed apartment complex with
approximately 981 residential units. At the time of the incident,
there were several wooden bridges with rope sides located on the
property. The property had been constructed in the late 1960’s or
early 1970’s, and the bridges had been there since the time of the
original construction.
Other than the incident reported by appellant on
November 28, 2017, Wagner was not aware of any other incident
involving a person falling off one of the wood and rope bridges.
Wagner provided a map of the Mariners Village property,
showing that there were multiple routes that appellant could
have taken to get to and from the channel area at the time of the
4
incident, which would not have involved walking over the subject
bridge.
Appellant’s opposition
Appellant filed her opposition to respondents’ motion for
summary judgment on March 1, 2021. In appellant’s responsive
separate statement of material facts, appellant admitted the vast
majority of facts at issue were undisputed. As to the few facts
that appellant claimed were “disputed,” appellant provided legal
argument without reference to any supporting evidence that
would create a factual dispute.
In addition to a responsive separate statement, appellant
provided evidence in the form of a declaration from Mark J.
Burns, a forensic engineer, building contractor and certified
building inspector. Burns had reviewed the deposition of
appellant, the building records, and photographs from the scene,
among other things. In addition, Burns personally inspected the
property and took photographs. Burns opined that the bridge at
issue violated 1968 Los Angeles County Building Code section
1714 (section 1714), which requires all unenclosed floor openings
to be protected by a guardrail no less than 42 inches in height.
Additionally, Burns observed that there was an
approximately three-inch gap between the edge of the bridge and
the rope guardrail. Due to this gap, pedestrians could not
accurately tell where the edge of the bridge was. In addition, due
to the gap, the rope would not stop a pedestrian from falling off
the bridge due to a misstep. Burns opined that the gap between
the edge of the bridge and the rope guardrail was a dangerous
condition and a direct cause of the incident.
Burns also noted that the poorly guarded edge of the bridge
had inadequate illumination. He opined that clear visibility of
5
the location of the edge of the bridge was necessary to traverse
safely across the bridge. Astrological data showed that the sun
set at 4:44 p.m. on November 28, 2017, in Marina del Rey,
California. Thus, the sun would not have provided significant
illumination at the time of the incident. Burns opined that lack
of adequate illumination exacerbated the dangerous condition on
the bridge.
Burns further noted that apartment industry standards
required the owner to implement a maintenance program.
Respondents had not produced evidence of a maintenance
program. It was Burns’s opinion that a reasonable maintenance
program and inspection of the bridge would have revealed the
dangerous condition regarding the bridge’s configuration.
Respondents’ reply
Respondents filed their reply memorandum, evidentiary
objections, and proposed order thereon on March 1, 2021.
Respondents pointed out that nearly all of the material facts were
admittedly undisputed by appellant, and the opposing papers
failed to put forth any triable issues of material fact.
Respondents argued that Burns’s declaration was in large part
inadmissible and that they were entitled to summary judgment
as a matter of law.
Trial court decision
The trial court issued a written decision on March 12, 2021.
The court found that respondents’ evidence met their burden of
showing that the condition of the bridge did not pose an
unreasonable risk of harm to appellant. Thus, the burden shifted
to appellant to raise triable issues of material fact as to whether
the condition of the bridge posed an unreasonable risk of harm.
6
The court addressed the Burns declaration. As to Burns’s
opinion that the bridge violated section 1714, the court found that
the outdoor bridge did not qualify as an “unenclosed floor
opening” within the meaning of section 1714. As to the three-
inch gap between the edge of the bridge and the rope guardrail,
the court found that Burns’s statement that a pedestrian would
not be able to ascertain the edge of the bridge was not supported
by the record. Thus, Burns’s opinion had no evidentiary value.
Because a pedestrian could ascertain the edge of the bridge using
due care, respondents did not have a duty to protect pedestrians
from a fall. Likewise, as to Burns’s conclusion that there was
inadequate lighting on the bridge, Burns did not identify a
dangerous condition on the bridge for the lack of lighting to
exacerbate.
The court found that Wagner’s declaration adequately
showed that respondents did not have notice of any allegedly
dangerous condition of the bridge before appellant’s fall.
The court found that appellant failed to meet her burden to
create triable issues of material fact as to her claim of premises
liability. Thus, the court granted respondents’ motion for
summary judgment.
Judgment and notice of appeal
On April 7, 2021, the trial court entered judgment in favor
of respondents. On April 9, 2021, appellant filed her notice of
appeal.
DISCUSSION
I. Summary judgment and standard of review
A motion for summary judgment should be granted if the
moving papers show that there are no triable issues of material
7
fact and the moving party is entitled to judgment as a matter of
law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) The moving party bears the burden of showing that one or
more elements of the plaintiff’s cause of action cannot be
established or there is a complete defense to the cause of action.
(Id. at p. 849.) The burden then shifts to the defendant to show
that a triable issue of one or more material facts exists as to that
cause of action or defense. The defendant must “‘set forth the
specific facts showing that a triable issue of material fact exists
as to that cause of action or a defense thereto.’” (Ibid.)
In reviewing a trial court decision on a summary judgment
motion, “‘[w]e review the trial court’s decision de novo,
considering all the evidence set forth in the moving and
opposition papers except that to which objections were made and
sustained.’” (State Dept. of Health Services v. Superior Court
(2003) 31 Cal.4th 1026, 1035.)
II. Premises liability law
“The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.) Generally, “[t]he owner of premises
is under a duty to exercise ordinary care in the management of
such premises in order to avoid exposing persons to an
unreasonable risk of harm. A failure to fulfill this duty is
negligence.” (Brooks v. Eugene Burger Management Corp. (1989)
215 Cal.App.3d 1611, 1619 (Brooks).) Thus, the fundamental
inquiry is whether the landowner exercised reasonable care in
preventing injury to persons on the premises. (Id. at p. 1620.)
Property owners are not liable for “damages caused by a
minor, trivial, or insignificant defect in his property.” (Cadam v.
8
Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383,
388-389.) However, even where a defect is not trivial, the
property owner must have actual or constructive knowledge of
the dangerous condition before liability may be imposed. (Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) Thus, to impose
liability on a property owner, “‘the owner or occupier “must have
either actual or constructive knowledge of the dangerous
condition or have been able by the exercise of ordinary care to
discover the condition, which if known to him, he should realize
as involving an unreasonable risk to invitees on his premises.”’”
(Ibid.) The plaintiff has the burden of showing that the property
owner “had notice of the defect in sufficient time to correct it.”
(Ibid.)
Property owners are generally not liable where a danger is
open and obvious. “Foreseeability of harm is typically absent
when a dangerous condition is open and obvious.” (Jacobs v.
Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th
438, 447 (Jacobs).) “‘Generally, 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.’” (Ibid.) An exception to this
rule exists when it is foreseeable that the danger may cause
injury despite the fact that it is obvious. (Ibid.) For example,
“obviousness will not negate a duty of care when it is foreseeable
that, because of necessity or other circumstances, a person may
choose to encounter the condition.” (Ibid.) For example, in
Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, a
trucker was injured when walking across a demolished concrete
ramp, which was the only way of reaching a silo for delivery of
materials. The Osborn court found a disputed issue of fact as to
9
premises liability because the worker’s “employment required
him to pass across this area in order to complete his work.” (Id.
at p. 123.)
III. Dangerous condition
To prove negligence, appellant must show that the bridge
was a dangerous condition that created an “unreasonable risk of
harm.” (Brooks, supra, 215 Cal.App.3d at pp. 1619-1620.) To
show that the bridge did not pose an unreasonable risk of harm,
respondents provided evidence that the property had been built
in approximately 1970 and contained nearly a thousand
residential units. Despite the volume of individuals that would
have traversed the subject bridge since the property was
constructed, respondents knew of no prior incident of anyone else
who had fallen off the bridge. Appellant provided no
contradictory evidence. In fact, appellant admitted that she had
walked over the same bridge dozens, if not hundreds, of times
before the incident without any problem. Given the volume of
foot traffic over the bridge, including by appellant herself, the
lack of prior incidents constituted undisputed evidence that the
bridge was not a dangerous condition creating an unreasonable
risk of harm.
Appellant argues that a dangerous condition existed due to
respondents’ failure to comply with section 1714, and that the
trial court erred in determining that section 1714 did not apply to
the subject bridge. We disagree. Section 1714 reads, in full:
“All unenclosed floor and roof openings; open and
glazed sides of landings and stairs; balconies or
porches which are more than 30 inches above grade;
and roofs used for other than service of the building
shall be protected by a guardrail. Guardrails for
stairs shall be not less than 30 inches above the
10
nosing of treads. All other guardrails shall be not
less than 36 inches in height. Open guardrails shall
have intermediate rails or an ornamental pattern
such that no object nine inches in diameter can pass
through the guardrail.”
In interpreting the provision, we must look to its words and
give them their usual and ordinary meaning. (People v. Pillsbury
(2021) 69 Cal.App.5th 776, 784.) “‘“‘The statute’s plain meaning
controls the court’s interpretation unless its words are
ambiguous.’”’” (Ibid.) The bridge in question is not an
unenclosed floor or roof opening. Nor is it a landing, balcony, or
porch. Thus, we find that the trial court did not err in
determining that section 1714 does not apply to the subject
bridge.
Further, appellant has set forth no law suggesting that a
building code violation constitutes negligence per se. Case law
suggests that building code violations do not automatically create
a dangerous condition. (See, e.g., Jones v. Awad (2019) 39
Cal.App.5th 1200, 1210 [“minor deviations from the standards set
forth in the [Uniform Building Code]” failed to raise triable issue
of material fact with respect to constructive notice]; Caloroso v.
Hathaway (2004) 122 Cal.App.4th 922, 928 [noting that the trial
court properly found “no foundation for [an expert’s] opinion that
noncompliance with certain building codes and standards made
the crack dangerous”].) Appellant has failed to provide evidence
that the bridge was unreasonably dangerous. The single incident
involving appellant does not lead to a conclusion of unreasonable
danger under the circumstances of this case. (Brooks, supra, 215
Cal.App.3d at p. 1620 [“No suggestion of negligence arises from
the mere happening of an accident.”].)
11
In addition to the lack of compliance with section 1714,
appellant emphasizes that there was a three-inch gap between
the outermost edge of the bridge and the loose rope located along
the side of the wooden bridge. Appellant argues that the low
height of the ropes, in conjunction with the three-inch gap,
created a dangerous condition. Appellant’s argument is
undermined by the evidence in the case. The bridge, and other
similar bridges throughout the property, had been in place since
approximately 1970, and hundreds if not thousands of
pedestrians had traversed the bridge during that time frame
without incident. In addition, appellant “testified that she
walked across the bridge from which she fell approximately 15
times per month for the five or six years she lived in the
apartment complex prior to her fall.” Prior to the incident on
November 28, 2017, she did not have any accidents or close calls
on the bridge. Further, as the trial court noted, because nothing
in the record indicated that a pedestrian could not ascertain the
edge of the bridge, Burns’s statement suggesting such a condition
was conclusory and without evidentiary foundation.
Finally, appellant complains that there was no artificial
lighting on the bridge at the time of the incident, thus it was even
more difficult to see the edge of the bridge in the dark. However,
there is no evidence to support a theory that inadequate lighting
caused appellant to fall. Appellant admitted in her deposition
that she had no trouble seeing at the time and that she was
familiar with the bridge. There is no evidence to support a theory
that inadequate lighting contributed to the accident. Further,
appellant does not argue that inadequate lighting was the
dangerous condition—she argues that inadequate lighting
exacerbated the dangerous condition. As set forth above,
12
appellant has failed to show that a dangerous condition existed,
thus the inadequate lighting argument is irrelevant.2
IV. Open and obvious condition
As an alternative defense, respondents argued that they
were under no duty to warn appellant of the configuration of the
bridge because it was an open and obvious condition. “‘Generally,
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.’” (Jacobs, supra, 14 Cal.App.5th at p. 447.) “In that
situation, owners and possessors of land are entitled to assume
others will ‘perceive the obvious’ and take action to avoid the
dangerous condition.” (Ibid.) An exception exists if it is
foreseeable that the danger may cause injury despite the fact
that it is obvious. For example, obviousness will not negate a
duty of care where it is foreseeable that due to necessity, a person
may choose to encounter the condition. (Ibid.)
In Jacobs, the plaintiff fell into an empty pool when the
diving board on which he was standing collapsed. (Jacobs, supra,
14 Cal.App.5th at pp. 441-442.) The Jacobs court upheld
2 We decline to address the parties’ competing arguments
regarding actual and constructive notice. The doctrine of notice
is only relevant where there is a dangerous condition on the
property. (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206
[“Because the owner is not the insurer of the visitor’s personal
safety . . . , the owner’s actual or constructive knowledge of the
dangerous condition is a key to establishing its liability.”].)
The undisputed evidence in this case fails to establish the
existence of a dangerous condition, thus there was no dangerous
condition for which respondents could have had actual or
constructive notice.
13
summary judgment for the defendant, finding that the plaintiff
was not compelled to step on the diving board and could have
found a safer means of observing that aspect of the property. (Id.
at p. 448.)
Appellant admitted that she was familiar with the subject
bridge, as she had crossed it many times on previous occasions.
She does not allege that the bridge was materially different on
the night that she fell. Appellant also indicated she had no
trouble seeing before she fell, thus she could see the configuration
of the bridge. Finally, appellant admitted that she did not need
to cross the bridge in order to get to her apartment on the night
of the incident. Because the configuration of the bridge was open
and obvious, and appellant did not cross the bridge out of
necessity, respondents were under no duty to warn her or remedy
the condition of the bridge.
Appellant argues that in contrast to the trial court’s
finding, there were various reasons why the risk posed by the
bridge was not open and obvious. Appellant argues there was no
way that she could have known the ropes were too low or that
there was a three-inch gap between the outermost edge of the
bridge and the loose rope. However, appellant testified that she
had walked across the bridge many times. She was familiar with
the bridge. Thus, she was also familiar with the three-inch gap
between the edge of the bridge and the lowest rope. There was no
evidence that the configuration of the bridge was hidden from
view or otherwise obscured. Appellant again raises the issue of
insufficient illumination, arguing that respondents’ failure to
provide adequate illumination at night exacerbated the risk and
made it more difficult for appellant to fully appreciate where the
edge of the bridge was located. Appellant’s own testimony that
14
she had no trouble seeing at the time of the incident undermines
this argument.
V. Conclusion
Respondents were under no duty to remedy or warn of the
configuration of the bridge, which, based on the undisputed
evidence, did not pose an unreasonable risk of harm.
Alternatively, even if the bridge did constitute an unreasonable
risk of harm, any such risk was open and obvious. Because
appellant has failed to set forth evidence establishing a triable
issue of fact as to whether respondents breached a duty to her,
summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs of appeal.
___________________________
CHAVEZ, J.
We concur:
_______________________________
LUI, P. J.
____________________________
HOFFSTADT, J.
15