Overwise v. Vons Companies CA2/4

Filed 8/5/16 Overwise v. Vons Companies CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JESSICA M. OVERWISE, B265116
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC520455)
v.
VONS COMPANIES, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court for Los Angeles County,
Gerald Rosenberg, Judge. Affirmed.
Law Offices of Julia Sklar and Julia Sklar for Plaintiff and Appellant.
Robinson Di Lando, Michael A. Di Lando and Mark Kane for Defendant
and Respondent The Vons Companies, Inc.
Lynberg & Watkins, Michael J. Larin and Christopher P. Bates for
Defendant and Respondent John M. Frank Construction, Inc.
Plaintiff Jessica M. Overwise appeals from a summary judgment in favor of
defendants Vons Companies, Inc. (Vons) and John M. Frank Construction, Inc.
(Frank) in her premises liability lawsuit. Overwise was injured when she twisted
her ankle and fell while walking on a bright yellow warning strip on the sidewalk
in front of a Vons supermarket. She alleged that the placement of the warning strip
close to the edge of the sidewalk created an unsafe condition because it failed to
properly indicate the presence of a change in elevation between the sidewalk and
the adjoining roadway. The trial court granted defendants’ motions for summary
judgment, finding as a matter of law that the condition that caused the accident –
the change in elevation – was not dangerous, but even if it was, the condition was
open and obvious. Overwise contends the trial court’s finding was contrary to the
evidence presented, ignored the opinion of her expert witness, and ignored Vons’
alleged violation of the California Building Code. Having reviewed the evidence,
including color photographs of the area in question, we reach the same conclusion
as the trial court. Accordingly, we affirm the judgment.
BACKGROUND
The facts relevant to this lawsuit are largely undisputed. The accident at
issue occurred at a Vons supermarket located in Pacific Palisades. The entrance to
the store is on the west side of the building. There is a seven-foot, nine-inch wide
concrete sidewalk, running south to north, in front of the store; the sidewalk abuts
an asphalt roadway and parking lot. Along the western edge of the sidewalk,
where the sidewalk abuts the roadway, there is a three-foot wide yellow strip of
“truncated domes” (a patterned mat that is required by the California Building
Code to provide a detectable warning to the visually impaired of the boundary
between the sidewalk and the roadway). The sidewalk is level with the roadway
directly in front of the entrance to the store, but the roadway gradually slopes down
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to the south and north, creating a curb along the sidewalk. The warning strip
extends south along the gradually increasing curb until the curb reaches its full
height of approximately six and a half inches, and extends north until the curb
reaches a height of approximately three inches. The curb is painted red, although
the warning strip covers most of the top of the curb.
At around 4:00 or 4:30 in the afternoon on November 20, 2012, Overwise
and her roommate exited the store with their groceries and walked south three or
four car lengths to their car. After unloading the groceries into the car, Overwise
took their shopping cart to the shopping cart corral near the front entrance of the
store. As she was walking back toward her car on the warning strip, she stepped
on the edge of the curb (which was about an inch and a half high at that point),
twisting her ankle and causing her to fall forward. She suffered a broken wrist and
bruising all over her body.
Overwise filed the instant lawsuit against Vons, alleging a single cause of
action for premises liability-negligence, and later amended the complaint to add
Frank, which was the contractor responsible for constructing the sidewalk, as a
defendant.1 Frank moved for summary judgment against Overwise on the ground
that her claim alleged a design defect, rather than a construction defect; Frank
argued that it constructed the sidewalk in accordance with the design plans and
specifications, and it could not be held liable because its work was completed and
accepted by Vons before the accident occurred. Vons moved for summary
judgment on the ground that the warning strip where Overwise fell was not a
dangerous condition as a matter of law, and even if it could be construed as a
defect, it was open and obvious, or it was a trivial defect.
1
Vons filed a cross-complaint for indemnity and other claims against Frank and the
manufacturer of the warning strip, Safety Step TD, Inc. (Safety Step), and Safety Step
filed a cross-complaint against Vons. Neither of those cross-complaints is at issue in this
appeal.
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In support of its motion, Vons submitted portions of Overwise’s deposition
testimony in which Overwise testified that, among other things, she had shopped at
the store in question once a week for 30 years, including the previous year and a
half since the sidewalk and warning strip were installed; she had walked on the
warning strip before; and that when someone is walking toward the store from the
location of her car, they can see that there is a curb that gradually narrows as it gets
closer to the entrance. Vons also submitted a declaration from Dr. Mack A. Quan,
a mechanical engineer, who performed a design analysis of the sidewalk and an
accident reconstruction analysis, and who concluded that “[t]he interface between
the accident sidewalk and the asphalt roadway was clearly demarcated by the
change in color and texture between the 3-foot wide, yellow truncated domes and
the asphalt roadway,” and that the warning strip “was more than adequate to safely
demarcate the change in elevation between the concrete sidewalk and adjacent
asphalt roadway.” Finally, Vons submitted color photographs of the scene of the
accident, some of which were taken on the day of the accident and others that were
taken by Vons’ investigator several months later; the photographs were
authenticated by Esmeralda Morales, the Assistant Store Manager of the Vons
store where the accident took place, who was present on the day of the accident
and who stated that the photographs accurately depict the area as it existed at the
time of the accident.
In opposition to Vons’ motion, Overwise argued that Vons improperly
allowed Frank to install the warning strip on top of the curb, making the curb
invisible to customers exiting the store, and that the difference in color between the
yellow warning strip and black asphalt did not give notice of an elevation change
when viewed from above. The evidence Overwise submitted in support of her
opposition included (1) her deposition testimony, in which she testified that she
could not see the curb from the store entrance, and assumed the warning strip was
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at the same level as the asphalt roadway; (2) the same color photographs from the
day of the accident that Vons had submitted and three other black and white
photographs taken that day; and (3) the declaration of expert witness Jerry Zerg, an
architect and forensic consultant.
Zerg, who conducted an inspection of the scene of the accident several
months after it occurred, stated that the warning strip extended to the south until
the curb reached its full height, but extended to the north only to the point where
the curb began.2 He observed: “Even though the truncated dome strips are yellow
and the asphalt surface of the parking lot is black, there could have been a red line
between the two surfaces at the time of the incident. The difference in color of the
adjoining surfaces and the red line does not give notice of an elevation change
between the two surfaces when viewed from above.” He stated that Overwise had
to choose between walking on the warning strip or walking in the roadway to
return to her car because the exposed concrete surface of the sidewalk was covered
with merchandise displays that blocked pedestrian travel, and that she chose as the
safest path to walk on the warning strip near the line where sidewalk abuts the
roadway. He noted that truncated domes are not intended to be used as a
pedestrian path – they are intended to give visually impaired pedestrians “a 3 foot
tactile notice of danger when crossing over the domes” – and are required by the
Building Code to be installed in vehicular areas where walking surfaces are not
separated by curbs. He opined that the accident would not have occurred if the
warning strip had ended before the curb began, and that having the warning strip
2
Based upon the photographs of the scene, Zerg’s description appears to be
incorrect with regard to how far the warning strip extends to the north. The photographs
show that the warning strip extended to the north until the curb was approximately three
inches high.
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continue until the curb reached its full height created a foreseeable hazard and an
unsafe area for pedestrian travel.
At the hearing on Vons’ motion for summary judgment, the trial court
announced its tentative ruling was to grant the motion. The court stated that based
upon all of the evidence presented, including the photographs, it found that the area
where the pedestrian walkway meets the asphalt parking lot is not a dangerous
condition. The court also stated that, even if it concluded that the walkway was
dangerous because of the rise in the curb, any such danger was open and obvious.
The court noted that “[t]he edge of the walkway, the curbside of the walkway and
the asphalt were all color coded with three very different stark colors. The
pedestrian walkway was yellow texturized with truncated domes. The edge of the
walkway and the curbside of the walkway are colored in a very bright red. The
asphalt is . . . black in color.”
After hearing argument, the court adopted its tentative ruling on Vons’
motion, and subsequently entered a minute order stating in relevant part the
following: “The Motion for Summary Judgment filed by Defendant The Vons
Companies, Inc. as to the Complaint is granted. [¶] The evidence is undisputed
that the pedestrian walkway and the area where it met the asphalt of the parking lot
was not a dangerous condition. It is an open and obvious condition. See Danieley
v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121. [¶] The
pedestrian walkway (yellow and texturized with truncated domes), the edge of the
walkway (red), the curb-side of the walkway (red), and the asphalt (black) were in
three colors.”
At a later hearing, the court granted Frank’s motion “pursuant to the same
reasons set forth [in] the granting of the motion for summary judgment filed by
Vons Companies.” Judgment was entered against Overwise and in favor of Vons
and Frank, from which Overwise timely filed a notice of appeal.
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DISCUSSION
A. Standard of Review
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made and sustained.
[Citation.] Under California’s traditional rules, we determine with respect to each
cause of action whether the defendant seeking summary judgment has conclusively
negated a necessary element of the plaintiff’s case, or has demonstrated that under
no hypothesis is there a material issue of fact that requires the process of trial, such
that the defendant is entitled to judgment as a matter of law.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334.)
B. Premises Liability
A property owner “‘is required to exercise ordinary care to render his
premises reasonably safe for use by invitees thereon. [Citations.]’” (Markewych v.
Altshules (1967) 255 Cal.App.2d 642, 645-646.) If a condition on the property
presents an unreasonable risk to those who encounter it, it is dangerous, and the
property owner is “under a duty to exercise ordinary care either to make the
condition reasonably safe for their use or to give a warning adequate to enable
them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443,
446.) But a property owner is not liable for damages if a dangerous condition is
“‘“obvious or should have been observed in the exercise of reasonable care.”’
[Citations.]” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20,
27-28.) That is because “‘if the 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 unless harm was foreseeable despite the
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obvious nature of the danger.’” (Danieley v. Goldmine Ski Associates, Inc. (1990)
218 Cal.App.3d 111, 122 (Danieley).)
In the present case, as noted, the trial court found as a matter of law that the
condition at issue – the change in elevation between the sidewalk with the warning
strip and the asphalt – was not dangerous, but even if it was dangerous, the danger
was open and obvious. Whether a condition is dangerous, or whether the danger is
open and obvious, ordinarily are questions of fact; however, those issues “‘may . . .
be resolved as a question of law if reasonable minds can come to but one
conclusion.’” (Peterson v. San Francisco Community College Dist. (1984) 36
Cal.3d 799, 810.)
Overwise argues on appeal that the trial court erred by resolving those issues
in this case as a matter of law for three reasons. First, she contends that the trial
court’s finding that the edge of the sidewalk was painted red, which finding the
court relied upon in concluding that the condition was open and obvious, was not
supported by any evidence. Second, she contends the court’s conclusion that the
condition was open and obvious is contradicted by Overwise’s testimony that a
person coming from the store entrance could not see where the curb begins, and by
expert witness Zerg’s statement that the difference in color between the yellow
warning strip and the black asphalt does not give notice of a change in elevation
between the two surfaces when viewed from above. Third, Overwise contends that
the warning strip was not a proper warning of a change in elevation because the
warning strip was not designed for that purpose and because the Building Code
does not allow warning strips to cover curbs. None of these contentions is
convincing.
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1. The Photographs, and Zerg’s Declaration, Support the Trial Court’s
Finding
Overwise argues that the trial court’s finding that the edge of the sidewalk
closest to the roadway was painted red was critical to its conclusion that the change
in elevation was open and obvious, but she contends “[t]here is no evidence
whatsoever of the existence of the edge pain[t]ed in red on the surface of the
walkway.” She is mistaken.
Two of the photographs taken by Vons’ investigator and attached as part of
exhibit B to the declaration of assistant store manager Morales show a view, from
above, of the curb area where the accident took place. The photographs show both
the face of the curb (i.e., the surface perpendicular to the roadway) and the top of
the sidewalk. One can see that the face of the curb is painted red, that the paint on
the top edge of the curb (where the curb transitions from vertical to horizontal)
appears to have been mostly worn away (it is mostly the color of gray concrete),
and that the red paint continues on the top of a portion of the curb for a short
distance before the remainder of the curb is covered by the yellow warning strip.
The presence of this relatively thin line of red on top of the curb was noted
by Overwise’s expert witness, Zerg. Although Overwise argues in her appellant’s
opening brief that Zerg “did not find any ‘painted edge’ on top of the curb,” and
“testified that such red line was necessary but absent,” she misconstrues his
declaration. Zerg stated: “Even though the truncated dome strips are yellow and
the asphalt surface of the parking lot is black, there could have been a red line
between the two surfaces at the time of the incident.” Overwise apparently
interprets Zerg’s use of the word “could” to mean that there should have been a red
line, but there was not such a line. But the next sentence of Zerg’s declaration
clarifies that, in fact, there was a red line, although Zerg concluded that it was
insufficient to give notice of the change in elevation: “The difference in color of
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the adjoining surfaces and the red line does not give notice of an elevation change
between the two surfaces when viewed from above.”
Thus, contrary to Overwise’s assertion, there is unrebutted evidence to
support the trial court’s finding that there was a line of red painted curb on the top
surface of the sidewalk.
2. Overwise’s Testimony and Zerg’s Expert Opinion do not Raise a
Triable Issue in Light of the Photographic Evidence
In her deposition testimony, which she submitted in opposition to Vons’
summary judgment motion in an attempt to dispute that the condition was open and
obvious, Overwise testified that although a person walking toward the store
entrance could see there was a curb where the accident occurred, “when you’re
coming out, you do not see where that curb begins. It’s impossible.” In addition,
Overwise’s expert witness testified that, based upon his personal examination of
the area, the place where the accident occurred was not an open and obvious
condition. On appeal, Overwise contends that this evidence precludes a finding as
a matter of law that no dangerous condition existed or that the condition was open
and obvious. We disagree.
As we observed in Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, a
trial court ruling on a summary judgment motion in a premises liability case must
independently evaluate the circumstances leading to the accident in determining
whether a condition was dangerous. (Id. at p. 928, citing Davis v. City of
Pasadena (1996) 42 Cal.App.4th 701, 705.) And where photographs of the
condition in question are submitted in support of the summary judgment, from
which the court can conclude that the condition was not dangerous and/or was
open and obvious, expert witness testimony to the contrary does not create a triable
issue of fact. (Caloroso, supra, at p. 928.)
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Similarly, Overwise’s testimony that a person coming out of the store could
not see the curb does not create a triable issue of fact. Whether a person at the
store’s entrance could see the curb is not particularly relevant. What is relevant is
whether the change in elevation is reasonably obvious to a person standing or
walking on the warning strip. As the court in Danieley observed, “because the
possessor or operator of a given premises is not an insurer of the safety of invitees
onto his premises, he is entitled to assume that any such invitee will perceive that
which should be obvious to him in the ordinary use of his senses.” (Danieley,
supra, 218 Cal.App.3d at p. 121.) The photographs Vons submitted show that the
change in elevation is easily detectable when viewed from a standing position on
the warning strip. Overwise did not submit any photographs from a different angle
showing that the elevation change could not be seen. Thus, she failed to raise a
triable issue of fact precluding summary judgment.
3. The Warning Strip is Adequate to Warn of the Potential Hazard
Finally, Overwise argues that the warning strip cannot be construed as a
warning of the change in elevation because warning strips are not meant for that
purpose and the installation of the warning strip in this instance violated the
Building Code. We disagree.
Overwise is correct that under the California Building Code a warning
strip’s primary purpose is to warn visually impaired people of a hazard, in this case
a roadway. But that does not mean that the warning strip does not also act as a
warning, even to non-visually impaired people, of some other hazard. By its very
nature, the bright yellow texturized strip calls attention to the area, and thus warns
pedestrians to be observant of possible hazards.
Overwise argues, however, that the warning strip in this case is not a proper
warning because its placement violated section 1133B.8.5 of the Building Code.
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That section provides in relevant part: “Detectable warnings at hazardous
vehicular areas. If a walk crosses or adjoins a vehicular way, and the walking
surfaces are not separated by curbs, railings or other elements between the
pedestrian areas and vehicular areas, the boundary between the areas shall be
defined by a continuous detectable warning which is 36 inches (914 mm) wide,
complying with Section 1121B.3.1, Item 8(a).”3 Overwise interprets this section to
prohibit the installation of warning strips where there are curbs. It does no such
thing. It simply requires a Code-compliant warning in areas where a pedestrian
walkway abuts a roadway and is at the same level as the roadway (like the area
directly in front of the entrance to the Vons store here); it does not prohibit the
placement of a warning strip at any other location.
In short, the trial court’s finding, as a matter of law, that the yellow warning
strip, the red line on top of the curb, and the black asphalt made the condition at the
scene of the accident open and obvious is fully supported by the evidence.
Therefore, the trial court properly granted summary judgment in favor of Vons and
Frank.
3
There is no dispute that warning strips with truncated domes, like the warning strip
in this case, comply with the Building Code.
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DISPOSITION
The judgment is affirmed. Vons and Frank shall recover their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
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