Hassaine v. Club Demonstration Services ( 2022 )

Filed 5/18/22 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LILYAN HASSAINE, D079396
Plaintiff and Appellant, (Super. Ct. No. 37-2019-00016440-
CU-PO-CTL)
v.
ORDER MODIFYING OPINION
CLUB DEMONSTRATION SERVICES, AND DENYING REHEARING
INC.,
NO CHANGE IN JUDGMENT
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed on April 22, 2022 be modified as
follows:
1. On page 2, the third sentence of the second paragraph, the word
“customers” is changed to “Costco shoppers” so that the sentence reads:
While the CDS-Costco agreement may allocate
responsibility and liability as a matter of contract between
those parties, it does not limit the scope of CDS’s common
law duty to Costco shoppers.
2. On page 4, the first two sentences of the first full paragraph
beginning with “Believing she slipped” and ending the second sentence with
“damages for her injuries” are deleted and inserted with the following:
Hassaine would eventually come to believe she slipped on
liquid soap that leaked out of a Softsoap twin-pack carried
in the shopping cart. She sued Costco and CDS
(erroneously named as Advantage Solutions, Inc.) for
negligence and premises liability, seeking compensatory
damages for her injuries.
3. On page 6, the third sentence of the first paragraph, the words
“where its customers” are changed to “where Costco customers” so the
sentence reads:
Under Danisan, supra, 155 Cal.App.2d 833, CDS’s duty of
reasonable care was not limited to its contractually defined
work area, but also extended to the areas where Costco
customers could be expected to shop.
4. At the first full paragraph on page 11, after the first sentence ending
“to provide a safe shopping facility,” add as footnote 6 the following footnote,
which will require renumbering of all subsequent footnotes:
6 CDS argues in its rehearing petition that it did not share
profits and losses or exercise joint control with Costco to
form a single business enterprise. Pointing to language in
its agreement with Costco, CDS maintains that the two
companies were separate business entities. In addition,
CDS claims it did not sell any products to have “customers”
of its own. Both contentions miss the mark. We use the
phrase “business enterprise” in a general rather than
technical sense to evaluate whether there is a special
relationship giving rise to a common law duty of care. Even
accepting CDS’s claim that it had no customers of its own,
it owed a duty of care by virtue of its special relationship
with Costco customers. Costco customers were CDS’s
business invitees as persons invited to peruse CDS’s
sample table offerings. Although CDS is a third party
contractor distinct from Costco, we readily conclude it has a
special relationship with Costco customers giving rise to a
duty of reasonable care.
2
5. At the fifth sentence of the first full paragraph on page 15, the word
“sample” is to be inserted between the words “its” and “customers” so that the
sentence reads:
Its lack of a contractual responsibility to maintain the
property outside the 12-foot perimeter is not determinative,
as CDS impliedly adopted Costco’s premises and invited its
sample customers to use the Costco aisles.
6. On page 19, first sentence of the second full paragraph, the words
“owes its customers” are changed to “owes them” so the sentence reads:
A business does not ensure its customers’ physical safety
but nonetheless owes them “a duty to exercise reasonable
care in keeping the premises reasonably safe.”
There is no change in judgment.
Respondent’s petition for rehearing is denied.
O’ROURKE, Acting P. J.
Copies to: All parties
3
Filed 4/22/22 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LILYAN HASSAINE, D079396
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-00016440-
CU-PO-CTL)
CLUB DEMONSTRATION SERVICES,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E.L. Strauss, Judge. Reversed.
Law Offices of Nicholas A. Boylan and Nicholas A. Boylan for Plaintiff
and Appellant.
England Ponticello & St. Clair, Barry W. Ponticello and Sarah M.
Reddiconto for Defendant and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts C and D of the Discussion.
While shopping at the Carmel Mountain Ranch location of Costco
Wholesale Warehouse Corporation (Costco) in San Diego, plaintiff Lilyan
Hassaine slipped and fell on a slippery substance that she believed was liquid
soap. Claiming serious injuries from the fall, she sued Costco and Club
Demonstration Services (CDS), an independent contractor that operated food
sample tables within the store. The trial court granted a motion for
summary judgment filed by CDS, concluding that the company owed
Hassaine no duty of care. In the court’s view, it was dispositive that CDS’s
contract with Costco limited its maintenance obligations to a 12-foot
perimeter around each sample table, and that Hassaine’s fall occurred
outside that boundary.
The trial court erred in concluding that CDS’s contract with Costco
delineated the scope of its duty of care to business invitees under general
principles of tort law. Businesses have a common law duty of ordinary care to
their customers that extends to every area of the store in which they are
likely to shop. (See Danisan v. Cardinal Grocery Store (1957) 155 Cal.App.2d
833 (Danisan).) While the CDS-Costco agreement may allocate responsibility
and liability as a matter of contract between those parties, it does not limit the
scope of CDS’s common law duty to customers. Although CDS protests that
this outcome would impose an unreasonable duty covering the entire Costco
warehouse, its argument conflates the legal question of duty and the
(generally) factual question of whether that duty was breached. Despite
having a duty of ordinary care, CDS would have no liability so long as its
conduct was reasonable under the circumstances, which include the distance
between CDS personnel and the hazard.
2
In short, CDS owed Hassaine the usual duty of ordinary care codified in
Civil Code section 1714. Breach and causation present triable factual issues
here, precluding summary judgment on those grounds. We accordingly
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 19, 2018, Hassaine was shopping with her
sister-in-law at Costco. While walking down an aisle, she slipped and fell. A
Costco surveillance video captured the incident.1
Hassaine entered the aisle where she would later fall, walking beside
her sister-in-law, who pushed a shopping cart. No foreign substance
appeared on the floor. The two women stayed in the aisle for about a minute
and a half, pulling out various grocery items from the refrigerated display
case as they conversed. After they moved on, a dark spot can be seen near
where the cart had been located.
Over the next several minutes various people proceeded to walk
through the aisle and past the dark spot, including an aproned CDS employee
and a Costco employee wearing a baseball cap. Less than seven minutes
after leaving the aisle, Hassaine and her sister-in-law returned. The sister-
1 Hassaine objected and moved to strike the surveillance video for lack of
foundation, defective chain of custody, spoliation, and failure to effect proper
service. CDS responded that there was no prejudice to Hassaine where both
sides had copies of the video, which was produced in discovery and had been
used in multiple depositions. In granting CDS’s motion for summary
judgment, the court overruled all evidentiary objections and denied
Hassaine’s motion to strike. Hassaine does not challenge those rulings and
instead suggests on appeal that the video demonstrates a triable issue of fact
as to whether CDS’s conduct was reasonable under the circumstances.
Accordingly, we have reviewed the video and summarize its contents in
reciting the facts in the light most favorable to Hassaine as the nonmoving
party. (See Mackey v. Board of Trustees of Cal. State Univ. (2019) 31
Cal.App.5th 640, 647, fn. 3.)
3
in-law pushed the shopping cart past the spill, as Hassaine walked behind
her with items in her hands. As Hassaine stepped near the spill, she fell flat
on her back. Her sister-in-law helped her up. Several Costco employees
arrived to assist her and wipe the floor.
Believing she slipped on liquid soap that leaked out of a Softsoap twin-
pack carried in the shopping cart, Hassaine sued Costco and CDS
(erroneously named as Advantage Solutions, Inc.) for negligence and
premises liability, seeking compensatory damages for her injuries. CDS
moved for summary judgment, arguing that it owed no duty to inspect or
maintain the location where Hassaine fell.2 To the extent a duty did exist,
CDS maintained that Hassaine could not prove breach where only seven
minutes elapsed between the spill and her fall. CDS also claimed Hassaine
could not demonstrate that any alleged negligence caused her fall where she
could not identify what substance caused her to slip or provide “evidence that
this substance was in any way related to CDS.” In other words, CDS claimed
that Hassaine could not establish the essential elements of duty, breach, or
causation required to prove negligence and premises liability.
Supporting its motion, CDS lodged a portion of the surveillance video,
the “Agreement for Demonstration Services” between Costco and CDS, and
excerpts of various depositions and discovery responses. Its lack-of-duty
argument turned entirely on the Costco-CDS agreement, which named CDS
as an “independent contractor” tasked with providing “demonstration and/or
consumer sampling of food and non-food merchandise” within Costco
warehouses. The contract defined the “ ‘Work Area’ ” that CDS had to safely
maintain as “a Demo workstation and the adjacent 12 [foot] vicinity.”
2 Costco also moved for summary judgment, but only CDS’s motion is
relevant to this appeal.
4
Witnesses testified that based on measurements, Hassaine fell somewhere
between 16 and 17 feet from the nearest CDS sample table.
Hassaine challenged CDS on both the law and the facts. Citing
Danisan, supra, 155 Cal.App.2d 833, she argued that CDS owed its invitees a
duty of reasonable care irrespective of anything in its private agreement with
Costco. Factually, she suggested there remained triable issues of fact as to
whether CDS and Costco employees in practice acted as mutual agents for
ensuring floor safety; whether the spill had migrated to within a 12-foot
perimeter by the time she fell; and whether Costco and CDS’s conduct was
reasonable under the circumstances. Hassaine offered deposition testimony
by several Costco and CDS employees who confirmed that CDS employees
typically notified Costco of any visible spills and acknowledged that the video
showed a CDS employee twice walk past the spill in the seven minutes before
Hassaine fell.
Following oral argument, the court entered a written order granting
CDS’s motion for summary judgment, concluding Hassaine could not
establish that CDS owed her any duty of care:
“Here, Costco contracted with [CDS] to provide product
demonstration services. (UMF ¶ 17.) The contract between
[CDS] and Costco defines the ‘work area’ as the 12-foot radius of
the ‘Demo workstation.’ (Id.) Thus, based upon the terms of the
contract, [CDS] is reasonably responsible for the area within 12-
feet of the workstation. (UMF ¶¶ 18, 19, 24.) Here, it is
undisputed that the area where [Hassaine] fell was more than
12-feet away from the center of the [workstation]. (UMF ¶ 20.)
Thus, based upon the undisputed material facts, [CDS] did not
owe [Hassaine] a duty.”
5
DISCUSSION
Hassaine contends the trial court erred as a matter of law in concluding
that the Costco-CDS Agreement limited the scope of its duty of care. We
agree. Under Danisan, supra, 155 Cal.App.2d 833, CDS’s duty of reasonable
care was not limited to its contractually defined work area, but also extended
to the areas where its customers could be expected to shop. Whether CDS’s
conduct was reasonable under all the circumstances presents a jury question,
as does whether inaction by CDS was a substantial factor in causing her fall.
Accordingly, summary judgment was not proper on grounds of duty, breach,
or causation.
A. Our Review Is De Novo.
The purpose of summary judgment under Code of Civil Procedure
section 437c “is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) “Summary judgment is appropriate
only ‘where no triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’ ” (Regents of University of California
v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents).) A moving defendant
bears the burden to show that the plaintiff cannot establish one or more
essential elements of the cause of action, or that there is a complete defense
to that cause of action. (Aguilar, at pp. 849, 853; Code Civ. Proc., § 437c,
subd. (o)(2).) If the defendant meets this burden, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or defense thereto.” (Code Civ. Proc., § 437c, subd.
(p)(2).) We review an order granting summary judgment de novo, “liberally
construing the evidence in support of the party opposing summary judgment
6
and resolving doubts concerning the evidence in favor of that party.” (State of
California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017−1018.)
The essential elements for both negligence and premises liability are
duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200, 1205 (Ortega); Jones v. Awad (2019) 39 Cal.App.5th 1200,
1207.) The trial court concluded that Hassaine was defeated by the first
element because CDS did not owe her any duty of care. “ ‘Duty, being a
question of law, is particularly amenable to resolution by summary
judgment.’ ” (Regents, supra, 4 Cal.5th at p. 618.) “Whether a duty exists is a
question of law to be resolved by the court.” (Brown v. USA Taekwondo
(2021) 11 Cal.5th 204, 213 (Brown).) Because the trial court granted
summary judgment on the basis of no duty, it did not reach CDS’s alternative
arguments regarding breach and causation. But regardless of the court’s
stated reasons, we are compelled to affirm the judgment if it was correct on
any ground the parties had an adequate opportunity to address below.
(Staats v. Vinter’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832 (Staats).)
As we explain, summary judgment is unwarranted on any of the three
asserted grounds.
B. As a Matter of Law, CDS Owed Hassaine a Duty of Reasonable Care.
The question of whether one owes another a legal ‘duty’ so as to face
tort liability upon breach is not really a question at all. It is instead “ ‘a
shorthand statement of a conclusion’ ”—“ ‘only an expression of the sum total
of those considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection.’ ” (Dillon v. Legg (1968) 68 Cal.2d 728, 734,
citing Prosser, Law of Torts (3d ed. 1964) pp. 332−333.) Here, for reasons we
will explain, CDS had a special relationship with Hassaine that gave rise to a
common law duty of reasonable care. This duty was not constrained by its
7
contractual arrangement with Costco defining the scope of its work area and
cleanup responsibilities.
1. CDS owed Hassaine a common law duty of reasonable care by
virtue of its special relationship with Costco customers.
It is a basic precept of tort law that each person has a duty to exercise
ordinary care and is liable for injuries resulting from a failure to act
reasonably under the circumstances—Civil Code section 1714 reflects this
default rule. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771
(Cabral).)3 Courts depart from this general rule only where a statute creates
an exception, or the policy considerations articulated in Rowland v. Christian
(1968) 69 Cal.2d 108 (Rowland) require the courts to create one. (Cabral, at
p. 771.)4 Applying these concepts, the Cabral court concluded that a major
grocery store chain owed a common law duty of reasonable care to fellow
motorists and therefore could be liable for negligence following an accident
that occurred alongside an interstate highway after one of its truck drivers
pulled over to eat a snack. (Id. at p. 783.) No considerations of foreseeability
or extrinsic policy under Rowland justified departure from the general rule
3 Civil Code section 1714, subdivision (a) provides: “Everyone is
responsible, not only for the result of his or her willful acts, but also for an
injury occasioned to another by his or her want of ordinary care or skill in the
management of his or her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or
herself.”
4 Under Rowland, a court might depart from the default duty rule by
balancing factors such as the foreseeability of harm, certainty that plaintiff
suffered injury, connection between defendant’s conduct and injury, moral
blame attached to defendant’s conduct, the policy of preventing future harm,
the extent of the burden to the defendant and consequences to community of
imposing a duty to exercise care with resulting liability for breach, and
availability, cost and prevalence of insurance for risk involved. (Rowland,
supra, 69 Cal.2d at pp. 112−113.)
8
that the grocery chain owed other motorists a duty of care. (Cabral, at
pp. 774−784.)
While broad, the default duty rule also “has limits.” (Brown, supra, 11
Cal.5th at p. 214.) It typically applies only where it is the defendant who
created the risk of harm to the plaintiff; “[t]he law does not impose the same
duty on a defendant who did not contribute to the risk that the plaintiff
would suffer the harm alleged.” (Ibid.) Even where a person discovers
another in peril and is in a position to help, that person is generally not liable
in tort for failing to protect the potential victim if he or she did not contribute
to creating the risk. (Ibid.; see Williams v. State of California (1983) 34
Cal.3d 18, 23 [“As a rule, one has no duty to come to the aid of another. A
person who has not created a peril is not liable in tort merely for failure to
take affirmative action to assist or protect another unless there is some
relationship between them which gives rise to a duty to act.”].) Despite
criticism that this “no-duty-to-protect” rule produces seemingly repugnant
outcomes, it is grounded in various policy reasons. (Brown, at p. 215.)
Perhaps because of its harsh results, the no-duty-to-protect rule is “not
absolute.” (Brown, supra, 11 Cal.5th at p. 215.) Where there is a special
relationship between the parties that gives the victim a right to expect
protection from the defendant, the law imposes an affirmative duty to
protect. (Id. at pp. 215−216; see Regents, supra, 4 Cal.5th at p. 619.) The
nature of the parties’ relationship “puts the defendant in a unique position to
protect the plaintiff from injury,” and “[t]he law requires the defendant to use
this position accordingly.” (Brown, at p. 216, citing Rest.3d Torts, Liability
for Physical and Emotional Harm (2012) § 40, com. h.)
One such special relationship exists between businesses and their
invitees: “a business or other possessor of land that holds its premises open
9
to the public” owes a duty of reasonable care to “those who are lawfully on the
premises” regarding risks that arise within the scope of their relationship.
(Rest.3d Torts, supra, § 40(a) & (b)(3).)5 “[A]lthough a store owner is not an
insurer of the safety of its patrons, the owner does owe them a duty to
exercise reasonable care in keeping the premises reasonably safe.” (Ortega,
supra, 26 Cal.4th at p. 1205.) By inviting the public to its store, an owner or
possessor has the duty “to exercise ordinary care and prudence to keep the
aisles and passageways of the premises in and through which, by their
location and arrangement, a customer in making purchases is induced to go,
in a reasonably safe condition so as not unnecessarily to expose the customer
to danger or accident.” (Hodge v. Weinstock, Lubin & Co. (1930) 109 Cal.App.
393, 396−397; see Tuttle v. Crawford (1936) 8 Cal.2d 126, 130.) This duty
extends to all parts of the premises over which the business proprietor has
control. (See Johnston v. De La Guerra Properties (1946) 28 Cal.2d 394, 401
[restaurant had a duty to maintain a common passageway outside the leased
premises, over which it exercised control].) Irrespective of control, it also
extends to all property the proprietor impliedly adopts and invites others to
use. (Danisan, supra, 155 Cal.App.2d at p. 838.) As a general matter, a
business invites its customers to all parts of the store where its customers
would be expected to go. (Id. at p. 837.)
The question of duty focuses on the general category of negligent
conduct alleged by the plaintiff, without regard to the particular facts or
evidence. (Cabral, supra, 51 Cal.4th at pp. 773−774.) Here, in other words,
do third party sample vendors generally owe a store’s customers a duty of
5 “By California law, an invitee is one who by express or implied
invitation is brought or comes on to the premises for the land possessor’s
advantage, or their mutual benefit or common interest.” (Beauchamp v. Los
Gatos Golf Course (1969) 273 Cal.App.2d 20, 27 (Beauchamp).)
10
care? Although there is generally no duty to protect another from a peril the
alleged tortfeasor did not help create, a well-recognized exception to this “no-
duty-to-protect” rule applies to the special relationship that exists between a
business and its customers. Accordingly, the question before us is whether
CDS is part of the business enterprise—which by virtue of its special
relationship to its customers bears an affirmative duty to protect them even if
a third party created the peril—or is more akin to fellow Costco shoppers—
who would owe no duty to warn even if they saw the liquid on the floor and
could have prevented Hassaine’s fall.
Framed in this manner, it is readily apparent that CDS was part of the
business enterprise and thus owed Costco shoppers a duty of reasonable care
to provide a safe shopping facility. It would be up to a jury to assess whether
any given failure to protect by CDS was reasonable under the circumstances.
As the Supreme Court explained in Cabral, “The duty of reasonable care is
the same under all these circumstances; what varies with the specific facts of
the case is whether the defendant breached that duty. That question . . . is
generally one to be decided by the jury, not the court.” (51 Cal.4th at p. 784.)
2. CDS’s common law duty of reasonable care was not affected by its
agreement with Costco.
Finding a special relationship giving rise to a duty of reasonable care is
not the end of the inquiry. “[E]ven when a special relationship gives rise to
an affirmative duty to protect, a court must still consider whether the policy
considerations set out in Rowland warrant a departure from that duty in the
relevant category of cases.” (Brown, supra, 11 Cal.5th at p. 222.) In other
words, is there some special reason in this case not to impose the duty to act
reasonably that we recognize and apply in virtually every other case? CDS
maintains there was, pointing to the terms of its contract with Costco. We
disagree.
11
On the day of the incident, CDS was serving samples of butternut
squash kale ravioli to Costco customers at the end of the aisle where
Hassaine fell. CDS’s contract with Costco stated that it was an
“independently established business separate and apart from Costco,” but
nonetheless required CDS demonstrators “to be gracious, helpful and
courteous to all Costco members, and to maintain their work area and a
reasonable vicinity adjacent thereto in a safe and sanitary condition.” The
contract expressly required CDS to maintain its workstation and the adjacent
area within a 12-foot perimeter in a safe and sanitary condition.6
Notwithstanding the general rule that businesses owe a duty to their
customers to keep the premises reasonably safe, CDS argues that an
exception should be recognized, and no duty imposed on independent
contractors whose responsibility for the premises is limited by their contract
with the business. On the particular facts of this case, CDS maintains that it
owed customers no duty to address hazards outside the 12-foot perimeter
specified in the contract. Accepting this argument, the trial court decided
that CDS’s contract with Costco limited the scope of its legal duty.
Simply put, CDS’s argument confuses two different legal theories that
are based on distinct sources of legal obligations. The terms of an agreement
can certainly affect the scope of a party’s obligation under a contract and its
liability for breach. But the duty to use reasonable care arises not from
contract, but from the common law of torts as codified in California in Civil
Code section 1714. There is no legal basis to permit two participants in a
business enterprise and potential defendants—here, CDS and Costco—to
6 For her part, Hassaine concedes her fall occurred outside the 12-foot
perimeter, but suggests that parts of the slick substance migrated within
that perimeter by the time she fell.
12
contractually limit between themselves the scope of the tort duty that one of
them owes to a third-party plaintiff/victim who was not a party to the
contract.7
We agree with Hassaine that Danisan, supra, 155 Cal.App.2d 833 is
instructive. A butcher, a dry goods grocer, and a produce vendor operated
within an enclosed market. (Id. at p. 835.) Each “had a lease which covered
a particular area of the building and provided among other things that the
lessee should have ‘. . . the right of ingress and egress in, to, upon, through
and over all parts and portions of said property as may be necessary to carry
on and operate . . . [the particular department].’ ” (Ibid.) After buying meat
and groceries, a customer proceeded to the produce area, where she slipped
on an onion peel lying on the ground. (Id. at pp. 836‒837.) The trial court
granted nonsuit motions filed by the butcher and grocer; in reversing, the
appellate court rejected two arguments that are relevant here.
First, the butcher and grocer argued that even if they had invited the
plaintiff to shop the entire market, at the time she fell, she had completed her
meat and grocery purchases and had no intention to return. The defendants
suggested that the customer was no longer their invitee to whom they owed a
duty. Disagreeing, the court reasoned that by jointly operating the premises,
all three vendors “intended to and did invite the public generally to
patronize” the entire market. (Danisan, supra, 155 Cal.App.2d at p. 838.)
While the plaintiff stated she had completed her meat and grocery purchases,
7 Cases recognizing that parties may contractually agree to indemnify
one another in the event of a third party claim do not suggest otherwise.
(See, e.g., Crawford Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.)
Nor is this a case in which the injured party signed a release expressly
waiving claims for tort liability. (See, e.g., Madison v. Superior Court (1988)
203 Cal.App.3d 589, 598.)
13
“it could not be said as a matter of law that she had, for those reasons, ceased
to be the invitee of the butcher shop and the grocery department”—in other
words, their invitation “had not been exhausted merely because in her mind
at the moment she fell she did not intend to make further purchases.” (Id. at
pp. 837−838.) Viewing the record, it was apparent that each vendor invited
the general public to patronize the market, and their invitation “was not
limited to the area occupied by any one defendant to the exclusion of others,
but to the contrary was an invitation by all defendants and extended to all
portions of the premises where plaintiff would likely shop.” (Id. at p. 838.)8
Second, the Danisan court addressed the defendants’ claim that they
owed the plaintiff no legal duty because the injury happened in an area they
had no right to enter or clean. (Danisan, supra, 155 Cal.App.2d at p. 838.)
Rejecting this contention as well, the court reasoned that the defendants’ lack
of ownership or right to maintain the property was important but not
conclusive. Where a business expressly or impliedly adopts the property of
another and invites others to use it, that business “owes to such invitee a
duty to exercise reasonable care to see that the property is safe.” (Ibid.; see,
8 Danisan was decided before the Supreme Court in Rowland, supra, 69
Cal.2d at page 119 repudiated the classic trespasser-licensee-invitee
distinctions to define duty in favor of Civil Code section 1714’s basic
foreseeability approach. (See 6 Witkin, Summary of Cal. Law (11th ed. 2017)
Torts, §§ 1228, 1270.) Although by this repudiation Rowland “greatly
enlarged the duties owed to licensees and trespassers, it had less effect on the
already broad scope of duties owed to invitees.” (6 Witkin, Summary of Cal.
Law, supra, Torts, § 1260.) As later case law has made clear, Rowland “does
not generally abrogate the decisions declaring the substantive duties of the
possessor of land to invitees nor those establishing the correlative rights and
duties of invitees.” (Beauchamp, supra, 273 Cal.App.2d at p. 27.)
Accordingly, we draw from Danisan’s pre-Rowland discussion of the
appropriate scope of an invitation in evaluating CDS’s duty of care to its
invitees.
14
e.g., Food Pro Internat., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th
976, 988−989 [in insurance coverage dispute, ordinary negligence liability
could lie, triggering insurer’s duty to defend, as to an independent contractor
who failed to warn against a danger created by a third party that fell outside
the scope of the contractor’s professional services].) Whether or not
reasonable care was used is generally a jury question. (Danisan, at p. 838.)
Here, as in Danisan, CDS had a contract that limited the floor area it
was responsible for maintaining. But nothing in that contract with Costco
limits the scope of its common law duty to Hassaine. By positioning itself
inside a Costco store and offering product samples to Costco shoppers
traversing store aisles, CDS had a special relationship with its Costco
shopper-invitees that gave rise to a duty to exercise ordinary care. That duty
encompassed not solely the 12-foot “work area” defined in the Costco-CDS
contract but extended to all areas that shoppers would reasonably be
expected to use—i.e., the entire Costco store. Its lack of a contractual
responsibility to maintain the property outside the 12-foot perimeter is not
determinative, as CDS impliedly adopted Costco’s premises and invited its
customers to use the Costco aisles. If CDS personnel became aware of a
hazard in a different part of the store, they could at a minimum advise an
appropriate Costco employee. Even after customers moved on to another part
of the store, it cannot be said that CDS’s invitation to them ceased. (See
Danisan, supra, 155 Cal.2d at pp. 837−838.)9
9 Because we conclude CDS’s common law duty was not constrained by
its contract with Costco, we do not reach Hassaine’s assertion that there was
evidence the spill had migrated to within a few feet of CDS’s workstation at
the time she fell.
15
Attempting to distinguish Danisan, CDS points out that each vendor in
that case signed a lease granting it “the right to use all the open space in the
market.” CDS maintains that Danisan imposed a joint duty of care on each
vendor “[b]ecause of the nature and degree of the entanglement amongst the
entities” placing them in joint operation of the market and owing a joint duty
of care. But this reads Danisan too narrowly. Each of the three vendors
operated under a lease covering a particular area of the building, and “each
lessee followed an imaginary line in maintaining and keeping clean the area
in which its business was conducted.” (Danisan, supra, 155 Cal.App.2d at
pp. 835−836.) The court reached its decision not based on the “degree of
entanglement amongst the entities” but rather by considering the reasonable
scope of each vendor’s invitation. It determined that the invitation and
resulting duty extended “to all portions of the premises where plaintiff would
likely shop.” (Id. at p. 838.) The fact that each lessee had no right to enter or
clean another’s area did not compel a different result where each vendor had
“impliedly adopt[ed] the property of another and invite[d] others to use it.”
(Ibid.) There, as here, the vendors held a special relationship with the
plaintiff giving rise to a duty to exercise reasonable care as articulated by
Civil Code section 1714.10
3. No other policy factors support a limitation on CDS’s general duty
to exercise reasonable care.
Deciding that the special relationship between CDS and Costco
shoppers is unaffected by limitations in the CDS-Costco contract does not end
our duty inquiry. We must also consider whether any special foreseeability
10 Considering it unnecessary to our analysis, we do not address
Hassaine’s argument that there was evidence of an independent implied
agreement under which Costco and CDS acted in practice as mutual agents
with respect to maintaining floor safety.
16
concerns or policy considerations set forth in Rowland otherwise require a
departure from the usual duty to exercise reasonable care. (Brown, supra,
11 Cal.5th at p. 222.) The Rowland factors (listed ante at fn. 4) fall into two
categories. “Three factors—foreseeability, certainty, and the connection
between the plaintiff and the defendant—address the foreseeability of the
relevant injury, while the other four—moral blame, preventing future harm,
burden [to the defendant], and availability of insurance—take into account
public policy concerns that might support excluding certain kinds of plaintiffs
or injuries from relief.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145
(Kesner).)
Hassaine cites Rowland in her opening brief. CDS does not discuss the
case or its factors but responds by suggesting it would go too far to impose a
duty on CDS “to all COSTCO shoppers, in all locations, and at all times” that
would extend “throughout COSTCO’s entire warehouse” and be untethered to
liability connected to the samples CDS was serving. Implied in CDS’s
argument is that it would be overly burdensome were we to extend its duty
“to all means of egress and ingress and all aisles within Costco” and that this,
in turn, supports limiting its duty to the contractually defined 12-foot
perimeter.
“The most important factor to consider in determining whether to
create an exception to the general duty to exercise ordinary care articulated
by section 1714 is whether the injury in question was foreseeable.” (Kesner,
supra, 1 Cal.5th at p. 1145.) Our task is not to decide whether a particular
injury was reasonably foreseeable but rather whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm
the plaintiff experienced to warrant imposing liability. (Ibid.; Cabral, supra,51 Cal.4th at p. 772.) Here, it is not only foreseeable but a matter of common
17
experience that shoppers walking the aisles of a Costco warehouse might slip
and fall on a substance spilled on the concrete floor. The very existence of
food and beverage samples at tables scattered throughout the store amplifies
the risk that a Costco shopper might create a hazard somewhere else in the
store.11
Nor do any of the various policy factors listed in Rowland offer any
reason to refrain from placing a duty of care on third party sample vendors
operating within Costco. A legal conclusion that CDS owed Costco customers
a duty of reasonable care does not suggest that CDS would necessarily face
liability for a slip and fall anywhere in the warehouse. It is up to the jury to
evaluate whether CDS’s conduct was reasonable under the circumstances.
This in turn implicates a fact question as to breach, provided the facts are
reasonably in dispute. (Cabral, supra, 51 Cal.4th at pp. 773, 784.)
In summary, by virtue of its special relationship with Costco customers,
CDS owed a duty of reasonable care consistent with Civil Code section 1714.
Unlike customers who have no affirmative duty to protect their fellow
shoppers, CDS (along with Costco) invited customers to use the public areas
of the store as they looked at the merchandise being offered for sale and
tasted the various samples being offered by CDS. CDS’s common law duty to
Costco shoppers was not defined or constrained by CDS’s separate
11 The other foreseeability factors point the same way. The second
Rowland factor (uncertainty of injury) is inapplicable because Hassaine
alleges certain and compensable physical harm. (See Kesner, supra, 1
Cal.5th at p. 1148; Staats, supra, 25 Cal.App.5th at p. 839.) The connection
between CDS’s conduct and the injury suffered is strongly related to the
foreseeability question itself (Cabral, supra, 51 Cal.4th at p. 779), and
“generally is relevant when intervening third party conduct caused the
injury.” (Staats, at p. 839.) For reasons already discussed, it was reasonably
foreseeable that a Costco shopper might slip and fall on a liquid inadvertently
spilled on an aisle floor.
18
contractual agreement with Costco. As none of the Rowland factors warrant
creating an exception to the general rule, CDS owed Hassaine a common law
duty of care and the trial court erred in concluding otherwise.
C. Triable Issues of Fact Preclude Summary Judgment on the Ground that
There Was No Breach.
As an alternative argument to claiming it owed no legal duty, CDS
moved for summary judgment on the ground that Hassaine could not prove
breach. The record compels us to reject this claim. We cannot say that no
reasonable jury would find that CDS failed to act with reasonable care under
the circumstances. (Cabral, supra, 51 Cal.4th at p. 773.)
A business does not ensure its customers’ physical safety but
nonetheless owes its customers “a duty to exercise reasonable care in keeping
the premises reasonably safe.” (Ortega, supra, 26 Cal.4th at p. 1205.) It
satisfies this duty “by making reasonable inspections of the portions of the
premises open to customers.” (Ibid.) Although lack of knowledge is not a
defense, a business must have actual or constructive knowledge of a defect or
been able to discover it by exercising ordinary care. (Id. at p. 1206.)
As a rule, “a defendant is entitled to judgment as a matter of law if the
plaintiff fails to show that the dangerous condition existed for at least a
sufficient time to be discovered by ordinary care and inspection.” (Ortega,
supra, 26 Cal.4th at p. 1207.) But this inquiry generally presents “a question
of fact for the jury, and the cases do not impose exact time limitations.”
(Ibid.) For example, a banana peel lying on the floor of a store for a minute
and a half could not give rise to tort liability following a customer’s fall.
(Girvetz v. Boys Market, Inc. 91 Cal.App.2d 827, 831−832 (Givetz).) In
reaching this conclusion, Givetz distinguished Louie v. Hagstrom’s Food
Stores, 81 Cal.App.2d 601 at page 608, where the stickiness of the syrup
19
demonstrated that it had been on the ground for a substantial period of time
before the customer fell.
Drawing parallels to Givetz, CDS contends that a seven-minute time
interval between the spill and Hassaine’s fall was too short as a matter of law
to find a breach. But this timing argument goes only so far given other
evidence of constructive knowledge proffered by Hassaine. Costco employee
Martin Vargas confirmed from looking at the video that the spill was visible
and measured at least four by six inches. At one point in the video, another
shopper steps right into the spill and looks back toward it as a CDS employee
(Lynette Kottis) walks by. A few minutes later, the same CDS employee
walks past the spill a second time. Vargas could not identify any reason the
CDS employee would not have seen the spill. As Costco manager Tatyana
Gashymov explained, “[m]ost spills are visible on the concrete because it
turns darker” where the spill is. Kottis testified that CDS employees were
expected to report spills even outside a 12-foot perimeter from their sample
tables. She was wearing her glasses on the day of the accident.
If credited by a jury, this evidence would support a reasonable
inference of constructive knowledge on the part of CDS—i.e., had she
exercised reasonable care, Kottis would have discovered the spill in the two
times that she walked past. (See Ortega, supra, 26 Cal.4th at pp. 1206−1207
[constructive knowledge may be shown by inferences reasonably drawn from
circumstantial evidence]; compare id. at p. 1211 [no breach where store
owner discharges its duty “by inspecting its premises in a reasonable
manner”] with Ruiz v. Walmart, Inc. (C.D.Cal. Jan. 21, 2021, No. CV 20-
01129 RAO) 2021 U.S.Dist. Lexis 49761, *6 [video showing store employee
walk part-way through an aisle where a customer fell 11 minutes later
20
created a triable issue as to whether her inspection was reasonable].)12
Because Hassaine’s evidence creates a triable issue of fact on the issue of
breach, summary judgment is unwarranted on this ground.
D. Triable Issues of Fact Preclude Summary Judgment on the Ground
That There Was No Causation.
As a second alternative argument, CDS sought summary judgment on
the basis that Hassaine could not prove causation. In its view, Hassaine only
offered “speculation and conjecture as to how or why she fell” and supplied
“no evidence that any purported negligence of CDS was a substantial factor
in causing her slip and fall.” CDS revisits this argument only briefly on
appeal, suggesting its proffered evidence disproved that any negligence on its
part caused or contributed to Hassaine’s injuries. As we explain, the
evidence on summary judgment does not rule out a reasonable jury finding of
causation.
To prove causation at trial, a “ ‘plaintiff must introduce evidence which
affords a reasonable basis for the conclusion that it is more likely than not
that the conduct of the defendant was a cause in fact of the result.’ ” (Ortega,
supra, 26 Cal.4th at p. 1205.) A “mere possibility” of causation is insufficient.
(Id. at pp. 1205−1206.) Rather, the plaintiff must demonstrate that “the
defendant’s breach of its duty to exercise ordinary care was a substantial
12 CDS argues that there could be no constructive knowledge given the
fact that Hassaine and her sister-in-law also “walked by and nearly stepped
in the spill prior to [Hassaine’s] fall and did not see it.” But the question is
not whether the plaintiff should have reasonably seen the spill (or even
whether she was comparatively negligent in not seeing it), but rather
whether CDS reasonably should have done so. Evidence that other
customers did not notice the spill at best creates a triable issue as to whether
CDS’s conduct was reasonable under the circumstances and does not
establish as a matter of law that constructive knowledge could not reasonably
be found by a jury.
21
factor in bringing about plaintiff's harm.” (Id. at p. 1205.) This is generally a
jury question unless the facts are not in dispute. (Ibid.)
The facts here are in significant dispute, precluding summary
judgment. According to CDS’s Kottis, Hassaine slipped on a liquid substance
that felt like oil or soap. Hassaine had a twin-pack of Softsoap in her cart
and described the product as slick or oily to the touch. The store video
showed Hassaine and her sister-in-law park the cart for a minute and a half
in that aisle; when they left, there was a dark spot on the floor where
Hassaine would later fall.
As Costco merchandiser Dustin Wimberly explained, Softsoap is a high-
volume product that is always stocked. Multiple Costco employees testified
about past spills involving leaky Softsoap containers like the one in
Hassaine’s cart at the time of her fall. The tops of the containers were not
sealed; “[y]ou could just pop the lid and pour.” Costco manager Tatyana
Gashymov lifted the Softsoap containers out of the cart on arriving at the
scene, but she may not have wiped caps to see if they were leaking. On the
surveillance video, Hassaine can be seen falling to the ground after stepping
on a spill in the same part of the aisle where her cart previously stood.
Gashymov observed an oily substance dripping from Hassaine’s cart. Fellow
Costco manager Matthew Mitzelfelt likewise saw an oily substance near the
bottom corner of Hassaine’s cart.
Taken together, this evidence would support a nonspeculative jury
finding that Hassaine slipped and fell on liquid soap, which leaked from a
container she placed in her shopping cart. This case is readily
distinguishable from the case CDS cited below, Peralta v. Vons Companies,
Inc. (2018) 24 Cal.App.5th 1030, 1036, in which the plaintiff’s evidence
established a mere possibility of a slippery substance on the floor. It was
22
undisputed that Hassaine fell and that there was liquid on the floor.
Questions as to whether the substance was instead coconut oil, or whether
the soap containers in Hassaine’s cart were actually leaking, merely create
triable issues and do not convert a reasonable inference of how Hassaine fell
into a speculative one.13 Moreover, evidence that Kottis twice walked past
the spill before Hassaine fell creates a jury question as to whether any
negligence by CDS was a substantial factor in causing Hassaine’s injury.14
Accordingly, one or more triable issues of material fact preclude summary
judgment on causation grounds.
DISPOSITION
The judgment is reversed. Hassaine is entitled to her costs on appeal.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
13 We reach this conclusion without considering the declaration offered by
Hassaine’s expert, Brad Avrit and accordingly need not address CDS’s claim
that the expert declaration was inadmissible.
14 Because CDS owed Costco shoppers a duty of ordinary care to protect
against hazards in the store, it is immaterial whether there is “evidence that
this substance was in any way related to CDS” or “proof that CDS was in any
way involved in the cause of her fall.”
23