Sacramento Personal Injury Lawyer Blog

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

SUMMARY JUDGMENT IS APPROPRATE ON THE LOSS OF CONSORTIUM CLAIM BECAUSE PAMELA WHITE CANNOT ESTABLISH HER CAUSES OF ACTION

A spouse has a derivative cause of action for loss of consortium caused by a negligent or intentional injury to their spouse by a third party. Rodriguez v. Bethlehem Street Corp. (1974) 12 Cal.3d 382,408. However, a spouse does not have a cause of action for loss of consortium when their spouse has no cause of action in tort. Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1067. As discussed above, plaintiff Pamela White cannot establish her causes of action for Negligence and Premises Liability. Therefore, summary judgment should be granted on Kenneth White's Loss of Consortium claim.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

CONCLUSION

Based on the foregoing, there is no triable issue of material fact, and defendant is entitled to judgment as a matter of law. Plaintiff Pamela White cannot establish one or more of the elements of her Negligence or Premises Liability causes of action.

Continue reading "Sacramento Safeway Responsible For Slip And Fall Injuries Under Premises Liability, Part 9 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

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. Moore, supra, 111 Cal.App.4 at 476. In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. Ibid. Moreover, where plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of proof of showing the owner had notice of the defect in sufficient time to correct it. Ibid.

Plaintiff has not and cannot produce any evidence to establish that Safeway Inc. had actual or constructive notice of the alleged dangerous condition on the floor prior to plaintiff's fall. Plaintiff concedes that she has no information as to how long the substance had been Memorandum of Points and Authorities In Suort of Defendant Safeway Inc.'s Motion for Summary Judgment present on the floor prior to her fall or how it came to be on the floor.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Safeway's Negligence Results In Sacramento Woman's Slip And Fall, Part 8 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Actionable negligence requires a showing that the defendant owed the plaintiff a legal duty, the defendant breached the duty, and the breach was the proximate or legal cause of the injuries suffered by the plaintiff. Pamela W. v. Millson (1994) 25 Cal.App.4th 950, 956. Although a store owner is not an insurer of the safety of its patrons, the owner does owe the patrons a duty to exercise reasonable care in keeping the premises reasonably safe. Moore v. Walmart (2003) 111 Cal.App.4th 72,476. A store satisfies its duty of care by making reasonable inspections of the portions of the premises open to customers. Ibid; Adams v. Dow Hotel (1938) 25 Cal.App.2d 51.

An owner or occupier of land is not liable for injury resulting from a dangerous condition that it had no knowledge of unless the condition had existed for such a length of time that, had the owner or occupier exercised reasonable care in inspecting the premises, it would have discovered the condition in time to remedy or warn, prior to the injury. Id. Evidence that a dangerous condition existed only a short period of time before a fall is insufficient, as a matter of law, to establish that Defendant had constructive notice of the dangerous condition. Perez v. Ow, supra; Givertz v. Boy's Market, Inc. (1949) 91 Cal.App.2d 827.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Safeway Had Duty to Protect Woman From Slip And Fall, Part 7 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

THIS COURT SHOULD GRANT SUMMARY JUDGMENT BECAUSE PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BREACHED ITS DUTY OF CARE AND/OR THAT DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION.

It is well established under California law that an owner or occupier of land is not strictly liable for injuries occurring on its premises, and is not an insurer of the safety of persons on its premises. (Witkin, Summary of California Law (9th Ed.) Tort 927.) An owner of property has a duty to exercise ordinary care to maintain the property to avoid exposing others to an unreasonable risk of harm. BAJI 8.01; Rowland v. Christian (1968) 69 Cal.2d 108.

Plaintiff must establish the elements of duty, breach of that duty, causation, and damages in order to recover damages under causes of action for negligence and/or premises liability (Restatement 2nd of Torts at 281; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611,1619).

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Woman Suffers Severe Injuries After Falling In Sacramento Safeway, Part 6 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

LEGAL ARGUMENT

SUMMARY JUDGMENT IS PROPER WHERE THERE IS NO TRIABLE ISSUE OF MATERIAL FACT

Code of Civil Procedure section 437c (c) states that a Motion for Summary Judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The court's power is not discretionary, but rather mandatory. The purpose for mandatory award of summary judgment is:
to help clear the court's of an overload of repetitious suits when it appears that no factual issue exists... or that one side or the other is wholly without right. Kaiser Foundation Hospital v. Superior Court (1967) 254 Cal.App. 2d 327, citing Dryer v. Dryer (1964) 231Cal.App.2d 441, 449.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

A motion for summary judgment is properly granted where there is no triable issue of fact and the moving party is entitled to judgment as a matter of law. Code of Civ. Proc. §437c, subd. (c). A defendant meets his burden on a motion for summary judgment or summary adjudication if that party proves that one or more elements of the cause of action cannot be established, or there is a complete defense. Code of Civ. Proc. §437c, subds. (f)(1) and (o)(l),(2).

Continue reading "Sacramento Woman Injured In Safeway After Falling While Buying Groceries, Part 5 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Maintenance and Inspection of the Floor

At the time of the incident, Safeway had in place procedures to inspect and maintain the floors. Safeway assigned a courtesy clerk to clean and inspect the floors at least once every hour. Courtesy clerks were responsible for documenting that they were conducting their sweep activities by "punching" the Sweep Log, sliding their employee time card through the time clock, pressing a button designating a sweep. In addition, as set forth in the Declaration of Safeway store manager, David Hall, employees are trained to clean up anything they observe on the floor, management continuously walks the store to monitor the condition of the floors, and an outside maintenance crew maintains the floors each night.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Safeway courtesy clerk Herbert Lee was assigned to inspect and sweep the floors between 8:00 a.m. and 9:00 a.m., on March 24, 2009. As set forth in the Declaration of Mr. Lee, during his sweep hour, he sweeps and inspects the entire store, and then punches the Sweep Log immediately after completing his inspection. Mr. Lee punches the Sweep Log only after he completes an entire sweep of the floors to indicate that the floors were clean and dry at that time.

Continue reading "Woman And Her Husband File Suit Against Safeway For Slip And Fall Injuries, Part 4 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

STATEMENT OF FACTS cont.

Plaintiff believes that she slipped and fell in a liquid substance because she claims that the seat of her pants felt wet on one side after the fall. However, plaintiff did not observe any liquid on the floor either before or after the fall. (Deposition of Pamela White, pages 85:23-86:1; 101:11-102:5; 109:1-21; 184:16-21.) Plaintiff concedes that she has no information as to how long the substance she claims she fell is was on the floor prior to her fall or how it came to be on the floor. (Deposition of Pamela White, pages 130:5-131:16; SSF, Fact No. 3).

After the fall, a paramedic pointed out what appeared to plaintiff to be a small piece of ham or turkey on the floor. (Deposition of Pamela White, pages 109:9-111:1.) Plaintiff concedes that she has no information as to how that piece of ham got onto the floor or whether it came from the sandwich she was carrying, and does not know how long it had been on the floor. (Deposition of Pamela White, pages 130:13-25.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Woman Falls In Sacramento Safeway Due To Liquid On Floor, Part 3 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

STATEMENT OF FACTS

On May 3, 2009, plaintiffs Pamela White and Kenneth White filed their Complaint alleging causes of action for Negligence, Premises Liability and Loss of Consortium. Specifically, plaintiffs allege that Pamela White slipped and fell in liquid of the floor and injured her right elbow, and that Safeway failed to exercise reasonable care in maintaining the store premises.

Plaintiff's Fall

On March 24, 2009, plaintiff Pamela White went to the Sacramento Safeway to purchase lunch for her son. Plaintiff arrived at the store between 8:20 a.m. and 8:30 a.m., and went to the deli department to get a ham sandwich. After leaving the deli department, she then walked to the back of the store and turned right down the back, main aisle of the store toward the dairy department to get yogurt. (Deposition of Pamela White, pages 74:9-22, 75:7-18, 76:7-20, 77:4-5; 121:20-122:9.) Plaintiff testified that she fell while walking in the dairy department between 8:40 and 8:45 a.m. At the time of the fall, plaintiff was carrying a ham sandwich, a bag of chips, and a bottle of water. She did not see anything on the floor in the area where she fell prior to her fall.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Injures Elbow In Safeway Slip And Fall, Part 2 of 9" »

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, Save Mart, Walmart, or Whole Foods.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

Memorandum of Points and Authorities In Support of Defendant Safeway Inc.'s Motion for Summary Judgment

INTRODUCTION

This action arises out of a slip and fall incident on March 24,2009, between 8:40 a.m. and 8:45 a.m., in the dairy department of a Safeway supermarket located in Sacramento, California. Defendant does not dispute that plaintiff fell. However, plaintiff cannot establish that there was anything on the floor for a sufficient period of time to provide notice to Safeway of any dangerous condition. Plaintiff concedes that she has no information as to how long any substance may have been present on the floor prior to her fall or how it came to be on the floor.

Safeway performed routine inspections of the floor where plaintiff fell prior to the fall. The floor was last inspected at 8:33 a.m., just 7 to 12 minutes prior to plaintiff's fall.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Woman Injured In Safeway Slip And Fall Incident, Part 1 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Even if the loss of the videotape was only negligent, CACI 203 (Party Having Power to Produce Better Evidence) instructs that the jury may draw an adverse inference against XYZ Market: You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence. This is based on Evidence Code section 412, which, provides: If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

There is videotape capability in the area where Ms. Black fell. XYZ Market insists that there is not and has never been any video taken on the incident date showing the area of Ms. Black's fall. In direct contradiction, Charles Black has testified under oath that he was told by both Tom Miller and Kim Li of XYZ Market's Risk Management Department that videotape of the slip and fall scene did in fact exist, and that XYZ Market was reviewing the tape in order to investigate Maggie Black's accident. This presents an issue of fact whether XYZ Market did either lose or destroy the videotape. If it did, then the jury may draw an adverse inference that the videotape would have shown conditions detrimental to XYZ Market's defense.

This Court should therefore deny the present motion on the additional triable issue of material fact concerning spoliation of evidence.

Continue reading "Sacramento Woman And Family Demand Supermarket Produce Videotape Of Her Slip And Fall Incident, Part 12 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Spoliation of Evidence/Adverse Inference

The California Supreme Court, in finding that there is not an independent tort of spoliation of evidence, stated, The intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation. There are, however, existing and effective nontort remedies for this problem. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4. The Supreme Court found that the adverse inference a jury may draw against the spoliating party is an adequate safeguard: [In] Evidence Code section 413, this inference is as follows:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's ... willful suppression of evidence relating thereto ... The standard California jury instructions include an instruction on this inference as well: If you find that a party willfully suppressed evidence in order to prevent its being presented in this trial, you may consider that fact in determining what inferences to draw from the evidence. (BAJI No. 2.03 (8th ed. 1994).) Id. At 12. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Supermarket "Loses" Videotape Of Woman's Slip And Fall Incident, Part 11 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

The evidence shows that XYZ Market had repeated problems with employees logging their sweeps before they actually did them.

There is also evidence, from the testimony of Maggie Black and independent witness Burns, that Ms. Black did in fact slip on something wet. There is evidence from the testimony of Maggie and Charles Black that there was a substantial amount of liquid on the floor enough so that her pants were wet on the buttock and both legs. The testimony of various witnesses, including Tom Miller and Ms. Black, establishes that she sat on the floor where she fell while awaiting the ambulance. This shows how the liquid had time to soak into her jeans. A substantial amount of liquid on the floor should have been noticed by the XYZ Market employees working nearby. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Under these facts, a reasonable jury could conclude:

1) XYZ Market employees involved in re-stocking activities created the dangerous condition on which plaintiff fell by either tracking in something wet from the back storage area or by transporting leaky product, or

2) The XYZ Market employees working in close proximity to where plaintiff fell should have seen the wet substance on the floor and cleaned it up, but were either negligent in not detecting it, or did see it but chose not to clean it up promptly. This is particularly true for the employee working the dairy case within five to six feet of the wet area.

Continue reading "Sacramento Family Sues Store After Dangerous Condition Causes Catastrpohic Injury, Part 10 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

There are Triable Issues of Fact Whether XYZ Market Employees Either Created the Dangerous Condition, or Knew or Should Have Known About It

The key question for the Court on summary judgment is whether there are triable issues of fact for the jury to consider. Based on the evidence here, we know that 8:30 a.m. is a slow time for this store; there were very few customers present. We know from the testimony of plaintiff, and XYZ Market employees Nancy Smith and Sean Reilly that at the time of the accident there were extensive ongoing re-stocking procedures, involving one employee in the meat section ten feet away, one re-stocking the dairy case five to six feet from where plaintiff fell, and three to five employees in aisles within sight of the fall. We also know that employees were coming in and out of the double swinging doors located near the fall area. There were many boxes scattered on the floor in that area. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

It is undisputed from XYZ Market's documents and its PMK testimony that every employee has an equal responsibility to detect and correct slip and fall hazards on the floor.

Continue reading "Slip And Fall Hazard On Sacramento Supermarket Floor Causes Injury, Part 9 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

ARGUMENT

Applicable Law

CACI 1001 (Standard of Care) provides:
A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In deciding whether defendant used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as plaintiff did;
c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether defendant knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant] 's control over the condition that created the risk of harm; [and]
(h) [Other relevant factor(s).]

The comment to CACI quotes the leading California Supreme Court cases on premises liability: The proper test to be applied to the liability of the possessor of land... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others ... Rowland v. Christian (1968) 69 Cal.2d 108, 119.

Continue reading "Sacramento Store Created Unsafe Condition Leading To Slip And Fall Suit, Part 8 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall case and its proceedings.)

It is worth noting that situations similar to those described in this personal injury case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

THE STRINGENT SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted only if all the papers submitted show there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law. CCP § 437c, subd. c); Molko v. Holy Spirit Assn. (1988)46 Cal.3d 1092. The Molko Court stated:

Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. (Walsh v. Walsh (1941) 18 Cal.2d 439, 441.) Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762.) It should therefore be used with caution, so that it does not become a substitute for trial. (Rowland v. Christian (1968) 69 Cal.2d 108, 111, 70 Cal.Rptr. 97.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Stationers Corp. v. Dun & Bradstreet (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432,437, 74 Cal.Rptr. 895.) Molko, supra, at p. 1107. (See Part 8 of 12.)

Continue reading "Sacramento Woman Needs Surgery After Slip And Fall At Store, Part 7 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

In addition, Mr. Miller testified:

Q: Is this floor, as far as you're concerned -- is it something that if an employee is looking for water on the floor, you would expect him to see it and correct it?

A. Sure.

Q. If an employee is engaged in restocking activities in the area where Ms. Black fell, even if their job at that moment is to restock, if they saw water on the floor, they should clean it up,

A. Absolutely.

Mr. Miller also testified:

The store in question has 27,000 square feet of customer sales floor area. The time of plaintiff's accident (roughly 8:45 a.m.) was a slow time for customers at the store. All employees are trained to look out for slip and trip hazards, including water. He does not know where all his employees were at the time of plaintiffs fall. Although there is videotape capability in the are where Ms. Black fell, there was no videotape. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The employee documents his inspection into the sweep log recording system after the sweep is completed. Mr. Miller saw plaintiff on the floor after her fall. He marked a "C" on the floor plan exhibit to his deposition showing where Ms. Black fell. Ms. Black was initially face down, but then sat up on the floor where she fell. She was there about 15 minutes before paramedics arrived.

The most common causes of moisture on the floor are meats and produce.

Deposition of Nancy Smith

Nancy Smith was working the dairy section. She testified as follows:

Continue reading "Water On Supermarket Floor Causes Sacramento Woman To Fall, Part 6 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Deposition of Store Manager Tom Miller (Designated PMK)

In response to plaintiffs' CCP 2025 notice for corporate representative most knowledgeable about store procedures, XYZ Market produced its store manager, Tom Miller. In his deposition quoted below, Mr. Miller confirmed that every employee has an obligation to maintain a lookout for slip hazards, and clean them up when they see them:

Q. All right. Let's talk a little bit about XYZ Market's floor inspection or sweep policy. Is it XYZ Market's position that safety is every employee's responsibility?

A. Absolutely.

Q. You have a slogan, Don't pass it by, pick it up, correct?

A. Correct.

Q. If an employee sees something on the floor such as liquid or debris, they're supposed to pick it up immediately; is that right?

A. Attend to it as soon as they can, yes.

Q. Is liquid on a store floor a safety hazard?

A. Absolutely.

Q. Are foreign substances on the floor a safety hazard?

A. Absolutely.

Q. Does every employee have an obligation to check the floor in areas where they're working?

A. Yes.

Mr. Miller testified further:

Continue reading "Family Sues Sacramento Store For Slip And Fall Due To Liquid, Part 5 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Charles Black Testimony

Charles Black was not present for the incident, but has testified that store manager Tom Miller told him that XYZ Market had video of the are where the fall occurred both before and after the incident. He told Mr. Black that the video had been sent to Kim Li, XYZ Market's District Manager, for review. Mr. Black later talked with Kim Li who told him she had the video. Charles Black felt his wife's pants at the Emergency Room and they were wet in the buttocks area and on both thighs. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market's Policies and Procedures

Documents

XYZ Market has produced documents it claims are confidential trade secret pursuant to a agreement for protective order. Plaintiff relies on some of these documents, which are lodged herewith as separate. Chief among these are documents entitled "Customer Accident Prevention" and "Slip and Fall Prevention," which state that each and every XYZ Market employee shares equal responsibility for detecting an correcting slip and fall hazards. Don't pass it by, pick it up is XYZ Market's motto in this regard. Plaintiffs are lodging XYZ Market's claimed confidential trade secret documents pursuant to Cal. Rule of Court 2.551 (b)(3). Plaintiffs do not intend to file a motion to have the records sealed, and hereby give notice to XYZ Market that the records lodged herewith, will be placed in the public court file unless XYZ Market files a timely motion or application to seal the records.

Continue reading "Hazardous Condition At Sacramento Store Causes Slip And Fall, Part 4 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Maggie Black Testimony

Ms. Black has testified in relevant part as follows:

She went to the back of the store and took a right turn into the back aisle. She was on her way to the dairy case containing yogurt. There were multiple XYZ Market employees re-stocking in the area of her fall before she fell, and there were boxes everywhere on the sales floor. There were three to five employees re-stocking the aisles adjacent to the area where she was walking just before she fell. There was a woman re-stocking the dairy section about 6' away when plaintiff fell. Maggie Black stated in answers to written discovery that there were XYZ Market employees "within 10 feet" of where she fell. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

•The woman stocking in the dairy section was no more than five to six feet away from where plaintiff fell.

•She walked by the double doors on her way to get yogurt, and she also saw a male XYZ Market employee come out from the double doors at the back of the store as she walked by.

•As Ms. Black turned into the back aisle, she noticed a XYZ Market clerk stocking meat in the butcher department.

•The clerk in the meat department was about 10' away (behind her) when she turned into the back aisle.

Continue reading "Sacramento Supermarket Employees Negligent In Slip And Fall Case, Part 3 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

FACTS

THE INCIDENT

The incident occurred on March 24, 2005. As she testified at her deposition, Maggie Black, a 38-year-old mother of two children (ages 4 years, and 16 months), was shopping at the Sacramento XYZ Market. Plaintiff fell at about 8:45 a.m. As she was walking with her 4-year-old looking for yogurt, she suddenly stepped on something wet and slippery on the floor. She lost her balance and fell face down, striking her right elbow. She is right handed. The fall occurred near the dairy Blacker located to the left of some double swinging doors that lead back to public restrooms, storerooms, and employee-only areas, such as the employee break room. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

XYZ Market claims it found no evidence of moisture on the floor, but admits for the purpose of this motion that some wet or slippery substance was on the floor. For the Court's background information, independent witness Mike Burns testified in deposition that he saw Ms. Black walking with her son, and that she suddenly appeared to be slipping and walking in place as if on ice. Her feet slipped out behind her, and she fell face down. Ms. Black testified that she noticed her pants were wet after she fell and spent time sitting on the XYZ Market floor where she fell.

Continue reading "Woman Suffers Broken Bones After Sacramento Supermarket Slip And Fall, Part 2 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this slip and fall case could just as easily occur at any of the supermarkets in the area, such as Safeway, Raley’s, Bel Air, SaveMart, Walmart, or Whole Foods.

Plaintiffs' Opposition to Defendant's Motion for Summary Judgment

INTRODUCTION

Plaintiffs Maggie and Charles Black oppose XYZ Market's summary judgment motion on two primary grounds:

First: There were multiple XYZ Market employees working on the floor near the area where plaintiff slipped and fell on a wet substance, both at and before the time of plaintiffs fall. One of these employees was five to six feet from the substance on which Maggie Black slipped. XYZ Market's written standards state that it is every employee's responsibility to detect and correct slip and fall hazards, not just the low level clerks who do the sweep log.

Plaintiff alleges the various employees working in the area of her fall failed their responsibility. There is a triable issue of fact whether these employees used reasonable care in their failure to detect and wipe up the wet area on which plaintiff fell. A jury could also find that these employees actually created the condition through their restocking activities, in which case notice to XYZ Market is presumed. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Second: XYZ Market representatives told Charles Black that there was videotape of the area where plaintiff Maggie Black fell, and that they were reviewing the tape. Once litigation commenced, XYZ Market stated that it had no videotape.

Continue reading "Sacramento Woman Sues Supermarket For Slip And Fall, Part 1 of 12" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

Plaintiff's Claim for Emotional Distress Damages Cannot be Bolstered With Evidence of Her Husband's Rare and Potentially Fatal Lung Disease

Plaintiff seeks to introduce evidence that her husband was diagnosed with a rare lung disease in June 2005 that either will require a lung transplant or may be fatal to bolster her claim for emotional distress damages as a result of the injury she sustained in her fall. Little is known about plaintiff's husband illness for several reasons, not the least of which is that he is not a part to this lawsuit and, therefore, no discovery has been conducted on the illness. We do know from plaintiff's deposition testimony and recent reports from counsel that plaintiff's husband has been able to work to date.

Specifically, plaintiff claims that the illness bolsters the emotion distress associated with her injury because she now has been told that she can no longer work as a dental hygienist, and she may some day need to support her three young children alone without relying on her chosen profession. Despite the parties best efforts to meet and confer over this issue, discussions which resulted in a stipulation to exclude much evidence at trial, this issue remains in dispute.

Evidence of plaintiff's husband's unfortunate illness should be excluded at trial. Not only is the health of this nonparty irrelevant to the issues in this case, there is no foundation for the evidence, since plaintiff has not designated the requisite expert to testify about the rage lung disease.

Continue reading "Woman From Sacramento Files Premises Liability Lawsuit For Slip And Fall At Hotel, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

ABC HOTEL DISPUTES THE EXTENT OF PLAINTIFF'S CLAIMED INJURY AND DAMAGES

Expert discovery has not been completed for good reason. The parties have continued to work together to obtain all of the records from University Medical Center where plaintiff not only sought a second opinion and underwent additional surgery and treatment, but where she continued to participate in physical therapy for her hand and wrist. Although some records were obtained from UMC (after months of delay), those records referenced additional records that were not produced by the Medical Center. Consequently, an additional subpoena was required.

These records are critical from the defense perspective since they will provide insights into how plaintiff is progressing with the use and function of her left wrist and hand, particularly given her new claim that she can never again work as a dental hygienist. Moreover, both plaintiff's and ABC Hotel's experts will rely on the additional records requested from University Medical Center, and therefore, expert depositions cannot take place before those records are obtained.
However, subject to expert testimony, ABC Hotel anticipates that it will dispute the extent of the injuries and damages alleged by plaintiff.

Plaintiff's Claimed Residual Pain Is Not the Result of the Injury She Sustained in Her September 2005 Fall

Following surgery to repair her broken wrist, plaintiff's fracture was well healed. As a result, her subjective complaints of residual pain and discomfort are unusual based on the proper repair and healing of this type of fracture and lack of objective findings. Indeed, there is no record of swelling and no redness in the area of the fracture. In addition, there is no need for further treatment, and plaintiff's symptoms should resolve with the passage of time.

Continue reading "Sacramento Hotel Guest Sues Under Premises Liability For Injuries, Part 7 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

In Delk v. Mobilehomes, Inc. (1953) 118 Cal.App.2d 529, the plaintiff was injured while doing work underneath a mobile home belonging to the defendant. A support jack had given way on account of damp ground conditions, leading to the lowering of a support beam which thereby struck plaintiff. The trial court directed a verdict in favor of the defendant, and the Court of Appeal affirmed. The Court held that the ground conditions were open and obvious, and that defendant was not liable for injuries therefrom. The Court held (at 532-533):

An invitor is not required to give an invitee warning or notice of obvious danger but is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.

In Powell v. Stivers (1951) 108 Cal.App.2d 72, the plaintiff tripped and fell over an electrical cord lying on the floor, nestled between a piano and the wall. The plaintiff filed suit against the building owner, claiming that the owner had a duty to warn of or remove the cord from the ground. Defendant moved for a nonsuit, which the trial court granted. The Court of Appeal affirmed, finding that the defendant could not be held responsible for a condition that would be apparent to others, and that the electrical cord was patent, an open and obvious danger. Id. at 73-74.

Based on well-established precedent, ABC Hotel owed no duty to warn plaintiff of the location of her and her companions' seven to eight pieces of luggage because they were open and obvious to any reasonable person using reasonable care to observe their environment (e.g. watching where one is walking). The accident occurred at approximately 4:30 p.m. of a summer afternoon in September (pre-daylight savings change).

Continue reading "Premises Liability Suit Filed Against Sacramento Hotel, Part 6 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The law involving trip and fall actions is well settled, and in fact most of the recent published decisions in this area have been made after summary judgment or as matter of law. For example, in Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, the plaintiff was injured after skiing down a slope, falling, and sliding into a tree. The plaintiff sued for premises liability, alleging that the defendant had either a duty to warn of the tree, or a duty to remove the tree. The defendant filed a motion for summary judgment on the ground that it owed no duty to warn of, or cure, dangerous conditions which were open and obvious. The trial court granted the motion, and the Court of Appeal affirmed. The Court held as follows (at 121-122):

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 is obvious to him in the ordinary use of his senses ... [Defendant] was under no duty to warn that this particular tree ... presented a danger to plaintiff wife. The tree itself provided a warning to plaintiff of the implicit danger of a collision with it. A fortiori, [defendant] was under no duty to remove it.

In Curland v. Los Angeles County Fair Assn. (1953) 118 Cal.App.2d 691, the plaintiff was injured after tripping over a pipe about one inch in diameter and protruding 7-10 inches above the ground. The plaintiff did not look down at the ground at any time before he fell.

Continue reading "Sacramento Woman Injured In Hotel Trip And Fall Files Suit, Part 5 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

The Luggage Was Open And Obvious

There is no duty on behalf of the property owner to warn of or repair a condition that is open and obvious to the reasonable person. Hanson v. Luft (1962) 58 Cal.2d 443, 445 [duty to warn of defects not applicable where defect open and obvious]; Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal. App. 4th 1578, 1590-1591 [where danger was obvious, no duty to warn or to make property safe]; Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408 [same]; Krognos v. Pacific Gas & Electric Company (1992) 7 Cal.App.4th 387, 393 [ 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 ]

DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [ it is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant ]; Marshall v. United Airlines (1973) 35 Cal.App.3d 84, 90 [ it is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both. ] As one learned author explained:

[I]f the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning. (See, 6 Witkin, Summary of California Law (9th ed.) Torts, § 930, p. 301.) (See Part 5 of 8.)

Continue reading "Hotel's Dangerous Condition Leads To Sacramento Woman's Trip And Fall, Part 4 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

ABC HOTEL IS NOT LIABLE FOR PLAINTIFF'S FALL OR HER INJURY

ABC Hotel Owed No Duty To Warn Plaintiff Of The Location Of Her And Her Companion's Luggage In The Hotel Suite

The duty to warn extends only to those conditions (1) which are dangerous and (2) which the defendant created or which the defendant had control over and sufficient notice in advance of any accident. Ortega v. Kmart Corporation (2001) 26 Cal.4th 1200, 1212. The duty to warn does not extend to conditions which are open and obvious. Daniely v. Goldmines Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.

The Stack Of Luggage Did Not Constitute A Dangerous Condition

Slips, trips and falls "are not so likely to be the result of negligence as to justify a presumption to that effect." Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 195. It is, therefore, incumbent upon plaintiff to.prove, as an essential element of her claim, that the condition upon which she fell was dangerous or defective. Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.

A condition is considered dangerous or defective only if it presents an unreasonable risk of harm to persons using the premises in a foreseeable manner. Akins, supra, 67 Cal.2d at 193; BAJI 8.21. In other words, a dangerous condition must be one which a person of ordinary prudence should have foreseen would appreciably enhance the risk of harm. Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209.

Continue reading "Sacramento Hotel Fights Liability For Guest's Trip And Fall Injury, Part 3 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

STATEMENT OF FACTS

On Saturday, September 2, 2005, plaintiff and her husband flew into town with another couple to celebrate plaintiff's 40th birthday. The two couples planned to share a suite for one night at the ABC Hotel. Upon their arrival at the Hotel, they had some food and alcohol at a Hotel bar and went swimming while they waited for their room.

Later that afternoon, the four arrived at their suite. The hotel suite is a bright room, well illuminated by natural light from large picture windows and bright decor comprised of white couches, white carrera marble table tops on bright turquoise table bases, light gray and white walls, and grey carpeting to better reflect the light. Their collective luggage was transported by a bellhop, who placed the luggage in the suite. In total, there were seven or eight pieces of luggage, all of them black in color.

Based on the collective deposition testimony, plaintiff and her companions brought the following luggage: (1) plaintiff brought a duffle bag; (2) Mark Smith brought a garment bag, computer bag, and his wife's breast pump bag; and (3) Alice and Randy Chin each brought a roller bag with an accompanying duffle bag.

Continue reading "Guest Trips And Falls At Sacramento Hotel, Part 2 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this slip and fall/personal injury case and its proceedings.)

Defendant ABC Hotel's Trial Brief

INTRODUCTION

Plaintiff was talking to her friend and admittedly not paying attention to where she was walking when she allegedly tripped over a stack of luggage in her suite at the ABC Hotel. Now, she seeks to blame the Hotel for her injuries that allegedly resulted from that fall.

Plaintiff and her husband flew into town with another couple, via private jet, during Labor Day weekend, 2005, to celebrate plaintiff's 40th birthday. The two couples planned to share a suite for one night at the ABC Hotel. While waiting for their suite, they had food and drinks at a Hotel bar and swam in the pool.

After arriving at their room later that day, plaintiff was speaking with her friend in the bedroom. Plaintiff stood closest to the doorway separating the bedroom from the common area, with her back to the common area as she was facing toward her friend. At some point, she began to leave the conversation and blindly stepped backward toward the common area. It was then that she allegedly tripped over seven to eight pieces of luggage in the common area of the suite.

ABC Hotel is not responsible for plaintiff's fall or her injuries. Seven or eight pieces of black luggage on the floor of the hotel suite does not constitute a dangerous condition.

Continue reading "Sacramento Woman Trips And Falls At Hotel, Part 1 of 8" »