Gray v. Eisenhower Medical Center CA4/1 ( 2023 )

Filed 5/15/23 Gray v. Eisenhower Medical Center CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BERNARD GRAY et al., D080915
Plaintiffs and Appellants,
v. (Super. Ct. No. PSC1902364)
EISENHOWER MEDICAL CENTER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County,
Ronald L. Johnson, Judge. Reversed.
Abir Cohen Treyzon Salo, Boris Treyzon, Borislav Kasreliovich and
Joseph R. Finnerty; Esner, Chang, Boyer & Murphy, Holly N. Boyer and
Shea Sierra Murphy for Plaintiffs and Appellants.
Agajanian, McFall, Weiss, Tetreault & Crist and Philip Weiss for
Defendant and Respondent.
Plaintiffs and appellants Bernard Gray, Nancy Gray and Victoria
Gray1 appeal a summary judgment entered in favor of defendant and
respondent Eisenhower Medical Center (Eisenhower) on plaintiffs’ complaint
1 References to Gray are to Bernard Gray.
for, inter alia, negligence, and premises liability arising out of Gray’s fall
from a rolling walker (also referred to by the parties as a rollator) just outside
of Eisenhower’s entryway. Sustaining most of Eisenhower’s evidentiary
objections to plaintiffs’ opposing summary judgment expert declaration, the
trial court ruled Eisenhower presented expert testimony that the location
where the incident occurred complied with applicable codes and regulations
and did not otherwise constitute a dangerous condition. Challenging the
court’s evidentiary rulings, plaintiffs contend: (1) analyzing the issue under
the California Supreme Court’s rubric for assessing the existence of a duty of
care, Eisenhower owed a duty of care for the condition of its medical center;
(2) by conceding there was a one-fourth inch tripping hazard at its entrance,
Eisenhower failed to carry its summary judgment burden to establish the
absence of a triable issue of material fact; and (3) their evidence in any event
raised a triable issue of fact as to whether the entryway complied with the
Americans with Disability Act (ADA) and California Building Standards
Code. Plaintiffs argue that given the existence of fact questions for the jury,
the court erred by granting summary judgment on derivative loss of
consortium and emotional distress causes of action.
We hold Eisenhower did not meet its initial summary judgment burden
of production on the issues of duty of care and breach of duty, the sole
elements of negligence Eisenhower challenged in its motion. Because these
arguments formed the basis for Eisenhower’s claim that plaintiffs could not
establish derivative loss of consortium and bystander emotional distress
causes of action, summary judgment was improperly granted as to those
claims as well. We reverse.
2
FACTUAL AND PROCEDURAL BACKGROUND
In April 2017, Gray suffered personal injuries after falling off a rolling
walker outside of Eisenhower’s entryway. Just beforehand, Gray’s daughter
had pushed him through the medical center’s lobby and two sets of double
doors while he was seated on the walker facing her; Gray fell when the
walker’s front wheels struck a metal plate spanning the length of the
walkway.2
Gray, his wife and daughter filed a complaint alleging causes of action
against Eisenhower for negligence, premises liability, infliction of emotional
distress, and loss of consortium.3 Alleging they were visitors and/or invitees,
they alleged Eisenhower “negligently maintained, managed, controlled and
operated the . . . Medical Center, in that they [sic] failed to warn of or make
safe the raised offset outside of the center’s entrance/exit”; that Eisenhower
“was aware or should have been aware that the nature of the raised offset
outside of the entrance/exit created a hazard to individuals visiting the
center”; and it was “entirely foreseeable that patrons, visitors and patients
2 Plaintiffs summarized these facts in their opposing separate statement
based on Gray’s and his daughter’s deposition excerpts. In its reply separate
statement, Eisenhower objected to the summary as irrelevant, immaterial,
lacking in foundation and misstating the evidence. In its summary judgment
points and authorities, however, Eisenhower described the incident as
follows: “With [Gray] sitting facing backwards and [Gray’s daughter]
pushing the [r]ollator forward, the front wheels of the [r]ollator eventually
made contact with [the] joint cover. Consequently, given [Gray’s] positioning,
momentum, and simple physics, the [r]ollator, with [Gray] still seated, fell
backwards onto the walking surface.” Setting aside the argumentative
portions, we see no material inconsistency between Eisenhower’s description
and plaintiffs’ evidence.
3 Plaintiffs sued other defendants and alleged causes of action against
them that are not at issue in this appeal.
3
would be entering/exiting the medical center without knowledge of the raised
offset.” They alleged Eisenhower in the exercise of reasonable care “should
have known that the raised offset constituted a dangerous condition and
unreasonable risk of harm, especially in light of its proximity to the
entrance/exit.” They alleged Eisenhower had a duty to maintain its property
accessible to the public for safe use of visitors and invitees, and had a duty to
discover and warn of foreseeable dangerous conditions, but breached those
duties. Victoria Gray and Nancy Gray respectively alleged causes of action
for negligent infliction of emotional distress and loss of consortium.
Eisenhower moved for summary judgment. It argued it had no duty to
protect plaintiffs and its conduct did not constitute a breach of the applicable
standard of care. Specifically, Eisenhower maintained its premises—
including the metal plate, which covered a seismic expansion joint in the
walkway—were fully compliant with all codes and regulations, and thus the
premises were not dangerous or defective. Eisenhower further argued
plaintiffs misused the rolling walker as if it were a wheelchair contrary to
warnings in the product’s owner’s manual. According to Eisenhower, the
misuse was unforeseeable thus negating any duty of care on its part. It also
argued that because the metal joint cover conformed to all applicable
standards and guidelines, Eisenhower did not breach any duty of care.
Eisenhower submitted a declaration from an expert, Sam Iler, who
stated he was a board certified safety and health manager as well as a
construction health and safety technician and general contractor. Iler stated
he had inspected the premises and reviewed ADA provisions applying to the
walking surface where the incident occurred and concluded:
4
“a. The location of the incident was constructed within applicable
building and accessibility requirements and codes designed to facilitate the
use of accessibility aids such as wheelchairs and other mobility devices.
“b. The walkway has a required structural seismic expansion joint/gap
. . . , which allows for the differential movement of the walkway structure
independently from the adjacent hospital structure.
“c. The joint/gap is covered by a commercial grade seismic joint cover
constructed of metal (‘joint cover’).
“d. The joint cover is part of a required system specifically designed for
the application utilized in this case.
“e. The joint cover conforms to local, state and ADA requirements
relative to the use of wheelchairs and other mobility devices.”
Iler further averred that the walkway was subject to governmental
requirements for an “accessible walkway,” and the metal joint cover met the
applicable standards because his measurements showed it had a less than
[one-fourth] inch vertical deviation from the walking surface. He stated:
“For an accessible walkway, any ‘vertical deviation,’ i.e., height, above the
adjacent walking surface may be as great as [one-half] inch (with beveled
vertical edges) or [one-fourth] inch (with non-beveled vertical edge).
[¶] . . . [¶] . . . Because the height measurement of the joint cover did not
exceed [one-fourth] inch, the joint cover falls within applicable standards for
both beveled and non-beveled vertical edges.”
In opposition, plaintiffs argued Eisenhower did not meet its burden on
summary judgment to negate the duty or breach elements of their claims in
that it offered no expert evidence to show their use of the rolling walker as a
wheelchair was unforeseeable or that the edges of the raised metal threshold
were beveled. They argued that contrary to Eisenhower’s arguments, the
5
product warning “conclusively establishe[d]” the use of the rollator as a
wheelchair was foreseeable. They argued Eisenhower owed a duty as a
landowner to keep its premises safe, and that it was foreseeable that a raised
offset at a hospital entrance may pose a danger to patrons who are elderly
and/or convalescing from serious injuries. According to plaintiffs, Eisenhower
could not rely on a product misuse defense because it was inapplicable to a
premises liability case and because Eisenhower had not pleaded such a
defense in its answer. They argued Eisenhower could not establish the
defense as a matter of law in any event.4 As for breach, plaintiffs argued
they presented expert evidence—a declaration from civil engineer and safety
expert Brad Avrit—that the raised metal threshold violated the ADA at the
time of the fall, and thus Eisenhower breached its duty to Gray.
Avrit opined that the premises where Gray was injured were in an
unsafe condition at the time of the incident. He averred that members of his
staff had taken photographs and measurements of the area in June 2018 and
December 2019, and he inspected, took measurements and photographed the
area in August 2021. Avrit stated the measurements taken by him and his
staff were greater than those taken by Eisenhower’s expert, and based on
ADA and 2016 California Building Standards Code requirements the height
differential between the metal threshold and concrete walkway violated the
ADA and the California Building Standards Code at the time of the incident.
4 Plaintiffs objected to Iler’s declaration on numerous grounds. The trial
court overruled all of the objections, and plaintiffs do not challenge those
evidentiary rulings on appeal.
6
Avrit detailed both the measurements he and his staff had taken and the
ADA and 2016 California Building Standards Code.5
Avrit averred: “Ambulation assist devices such as walkers and
rollators, like Mr. Gray’s rollator, can become impeded by abrupt height
differentials and as such require smooth transitions between elevation
differences. It is foreseeable that people in a hospital and medical center
like Eisenhower Medical Center would be using ambulation assist devices
like walkers or rollators. It is foreseeable that people with walkers and
rollators would travel through the subject location since it is a main
entrance/exit of the facility and would be considered a high traffic area.”
Avrit opined based on his education, training, and experience, it was “more
5 Avrit stated: “At the time of [the] site inspection of June 1, 2018, the
subject height differential between the metal cover and adjoining concrete
walkway measured 5/16 [inches] (0.31 inches) to 7.5/16 [inches] (0.46 inches).
At [the] second site inspection of December 13, 2019, the subject height
differential between the metal cover and adjacent concrete walkway
measured between 4.5/16 [inches] (0.28 inches) to 12.5/32 [inches] (0.39
inches) . . . . At the time of my own inspection of August 18, 2021, the subject
height differential measured between 11/32 [inches] (0.34 inches) to 13/32
[inches] (0.40 inches) with slopes at the leading edge of the cover ranging
from 53.0 [percent] to 61.7 [percent] slope. The slope was measured by
placing a digital level flush with the sloped leading edge of the metal cover.
The measurements that I took at my inspection in August, 2021 are
consistent with the measurements taken by [Avrit’s staff member] in June,
2018 and [Avrit’s staff member] in December, 2019.” Avrit stated: “Based on
the [ADA] standards and the 2016 California Building [Standards] Code . . . ,
height differentials between 1/4 inch and 1/2 inch must be beveled with a
slope no greater than 1:2 meaning that for every 1 unit of vertical
displacement will result in 2 units of horizontal displacement equating to a
50.0 [percent] slope. Based on the measurements taken on each of [Avrit’s
company’s] inspections, the subject height differential between the metal
threshold and concrete walkway was a violation of the ADA and the
California Building [Standards] Code at the time of the incident. The beveled
change in level in the threshold exceeded the 1:2 (50.0 [percent]) requirement
and instead measured a max of 61.7 [percent].”
7
likely than not that the subject incident would not have occurred had the
cover been flush mounted with the adjacent concrete, or been properly sloped
at the leading edge.” He also opined based on several factors that the height
differential was difficult to perceive at the time of the incident. He concluded
that “the existence of the vertical height differential between the metal
threshold and concrete walkway is a dangerous tripping and tipping hazard
that was a substantial factor in causing the subject incident. If there was not
a height differential, it is more likely than not that this incident would not
have happened.”
Eisenhower objected to Avrit’s declaration on grounds the entire
declaration was irrelevant because it was predicated on inspections that were
unauthorized and not properly conducted, that some of his conclusions and
methods lacked foundation, and other conclusions and statements called for
speculation, were conclusory and/or were irrelevant.
Overruling two of Eisenhower’s evidentiary objections and sustaining
the rest,6 the trial court granted Eisenhower’s motion and entered summary
judgment “for the reasons set forth in [Eisenhower’s] motion.” The court
stated its decision was “based upon [Eisenhower’s] submission of expert
testimony in support of its contention that the area where the incident
occurred was in compliance with applicable codes and regulations and did not
otherwise constitute a dangerous condition, the sustaining of [Eisenhower’s]
6 The trial court overruled Eisenhower’s relevance objection to the
entirety of Avrit’s declaration, which was based on a claim that his and his
staff’s inspections were “improperly conducted” and his findings thus “ha[d]
no evidentiary value.” It also overruled Eisenhower’s objection that a
sentence in paragraph No. 13 of Avrit’s declaration—where Avrit stated
ambulation assist devices like Gray’s rollator can become impeded by abrupt
height differentials and required smooth transitions between elevation
differences—was speculative, lacked foundation and was irrelevant as “ ‘more
akin to “advocating, not testifying.” ’ ”
8
evidentiary objections (Nos. 2-5 and 7-10) to the declaration of plaintiffs’
safety [expert] Brad Avrit, the denial of plaintiffs’ evidentiary objections, and
all other matters considered by the Court.”
Plaintiffs filed this appeal from the ensuing judgment.
DISCUSSION
I. General Summary Judgment Principles and Standard of Review
“ ‘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.” ’ [Citation.] 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. [Citations.]
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.’ [Citation.] We review an order granting
summary judgment de novo, ‘liberally construing the evidence in support of
the party opposing summary judgment and resolving doubts concerning the
evidence in favor of that party.’ ” (Hassaine v. Club Demonstration Services,
Inc. (2022) 77 Cal.App.5th 843, 849-850 (Hassaine), in part citing Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “[A]ny
doubts as to the propriety of granting a summary judgment motion should be
resolved in favor of the party opposing the motion.” (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 535.)
II. Eisenhower’s Initial Summary Judgment Burden
Plaintiffs advance two contentions that impliedly or expressly bear on
Eisenhower’s initial summary judgment burden. They first contend
Eisenhower’s argument that their assertedly unforeseeable misuse of the
rolling walker relieved it of its duty of care is a “profound misunderstanding
9
of how [foreseeability] operates in the context of a duty analysis.” Plaintiffs
argue foreseeability for purposes of assessing whether a defendant owes a
duty of care looks not to specifics of a case, but to whether entire categories of
claims can be excluded from an existing duty, and under the proper analysis
of policy considerations that warrant excluding certain kinds of plaintiffs or
injuries from relief, there is no basis to relieve Eisenhower of a duty of care.
Second, plaintiffs contend Eisenhower did not meet its initial summary
judgment burden on the issue of breach. They point out Eisenhower concedes
the expansion gap plate created an approximately one-fourth inch tall
tripping hazard at its entrance but claims the height differential complied
with applicable ADA or California Building Standards Code requirements.
According to plaintiffs, compliance with laws or safety regulations is not
dispositive of whether Eisenhower exercised due care, and thus Eisenhower
did not show as a matter of law that it acted with due care.
As we explain, both contentions have merit.
A. Additional Legal Principles
Eisenhower’s burden of production as the moving party was “to make
a prima facie showing of the nonexistence of any triable issue of material
fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) It
could meet this burden by showing the plaintiffs “ ‘ “ha[d] not established,
and [could not] reasonably expect to establish,” ’ the elements of [their] cause
of action.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) To do
so, Eisenhower was obligated to either “present evidence that . . . conclusively
negates an element of . . . the plaintiffs’ causes of action or shows that
plaintiffs do not possess, and cannot reasonably obtain, evidence necessary to
establish at least one element of each cause of action.” (Taylor v. Financial
Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 979; see also Aguilar, at
10
p. 855 [“defendant may, but need not, present evidence that conclusively
negates an element of the plaintiff’s cause of action” and may also present
evidence plaintiff does not possess, and cannot reasonably obtain, needed
evidence]; Usher v. White (2021) 64 Cal.App.5th 883, 893.)
When a summary judgment motion does not “ ‘negate theories of
[defendant’s] liability, the trial court should [hold] that [the defendant] failed
to carry [its] initial burden and stop[ ] there.’ ” (Hedayati v. Interinsurance
Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.) In that
event, “ ‘it is unnecessary to examine the plaintiff’s opposing evidence and the
motion must be denied.’ ” (Mireskandari v. Edwards Wildman Palmer LLP
(2022) 77 Cal.App.5th 247, 256-257; see also Scheer v. Regents of the
University of California (2022) 76 Cal.App.5th 904, 914-915 [superior court’s
“ ‘assessment of whether the moving party has carried its burden—and
therefore caused a shift—occurs before the court’s evaluation of the opposing
party’s papers’ to the motion for summary judgment”].)
B. Duty
“The general rule is that a landowner ‘owes certain affirmative duties
of care, as to conditions or activities on the land, to persons who come on the
land.’ [Citation.] [Civil Code s]ection 1714 provides that every person ‘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 . . . .’ ([Civ. Code,] § 1714, subd. (a).)
Under [Civil Code] section 1714, landowners owe a duty to exercise ordinary
care in managing their property in light of the foreseeability of injury to
others.” (Hoffman v. Young (2022) 13 Cal.5th 1257, 1266; Alcaraz v. Vece
(1997) 14 Cal.4th 1149, 1156 [persons have a duty to maintain land in their
possession and control in a reasonably safe condition]; see generally Kesner v.
11
Superior Court (2016) 1 Cal.5th 1132, 1142-1143 (Kesner) [stating general
duty rule as to “each person”]; Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th
764, 771 [general rule applies to “ ‘[e]veryone’ ”]; Hassaine, supra, 77
Cal.App.5th at p. 851 [describing Civil Code section 1714 as reflecting a
“default rule”].) Businesses in particular have a common law duty of
ordinary care to their customers that extends to the floors or walking
surfaces of the business that they are likely to pass over, including
passageways outside the premises over which they have control. (See
Hassaine, at pp. 847, 852 [store 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’ ”; the
“duty extends to all parts of the premises over which the proprietor has
control”]; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130 [“That it is the duty of
storekeepers to keep the floors of their premises safe for those who must pass
over them in the transaction of their business must be conceded”]; Johnston
v. De La Guerra Properties (1946) 28 Cal.2d 394, 401 [restaurant tenant had
a duty to maintain a common passageway outside leased premises in a safe
condition if he exercises control over it].)
A conclusion that a defendant does not owe a duty “constitutes a
determination by the court that public policy concerns outweigh, for a
particular category of cases, the broad principle enacted by the Legislature
that one’s failure to exercise ordinary care incurs liability for all the harms
that result.” (Kesner, supra, 1 Cal.5th at p. 1143.) The “concept of duty . . . is
a legal device . . . designed to curtail the feared propensities of juries toward
liberal awards. [Citation.] As a result, ‘in the absence of a statutory
12
provision establishing an exception to the general rule of Civil Code section
1714, courts should create one only where “clearly supported by public
policy.” ’ ” (Ibid.; Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 217;
Hassaine, supra, 77 Cal.App.5th at p. 851.) To decide whether to depart from
the general duty applicable to all persons, courts balance what are now
commonly referred to as the Rowland factors: “ ‘the foreseeability of harm to
the plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved.’ ” (Brown v. USA Taekwondo, at p. 217,
citing Rowland v. Christian (1968) 69 Cal.2d 108, 112-113.) “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 and availability of
insurance—take into account public policy concerns that might support
excluding certain kinds of plaintiffs or injuries from relief.” (Kesner, supra, 1
Cal.5th at p. 1145.) In this personal injury context, whether Eisenhower
owes a duty to persons coming into or out of its medical center “begins with
the ‘basic policy’ that ‘everyone is responsible for an injury caused to another
by his want of ordinary care or skill in the management of his property,’ and
then considers whether more particular considerations of policy call for
departure from the basic rule.” (Brown, at p. 217; see also Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 398 [“[I]n cases involving
traditionally compensable forms in injury—like physical harm to person or
13
property—we presume the defendant owed the plaintiff a duty of care and
then ask whether the circumstances ‘justify a departure’ from that usual
presumption”].)
Eisenhower in moving for summary judgment acknowledged that the
existence of a duty of care is a question of law amenable to resolution by
summary judgment. (Regents of University of California v. Superior Court,
supra, 4 Cal.5th at p. 618; Hassaine, supra, 77 Cal.App.5th at p. 850.) It
correctly pointed out that foreseeability of harm was a “crucial factor” in
determining the existence and scope of a duty. (John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1189.) But Eisenhower argued below (and repeats on
appeal): “[F]oreseeability does not by itself suffice to create a tort duty,
because in hindsight, everything is foreseeable. [Citation.] Instead, the
foreseeability must be ‘reasonable.’ The harm must be probable enough to
charge the defendant with a duty to act. It includes events that in modern
life are likely enough that reasonably thoughtful people would take account
14
of them in guiding their conduct.”7 Eisenhower concluded: “As applied here,
the totality of the circumstances conclusively establish the utter lack of
foreseeability. Plaintiffs misused their [r]ollator product, plain and simple,
and [Eisenhower] had nothing to do with it. In fact, regardless of whether
plaintiffs knew of the [product] warning or the warning was adequate,
[Eisenhower] was not involved. Plaintiffs’ decision to use the [r]ollator in an
unintended fashion did not create a duty on the part of [Eisenhower].”
This analysis, as plaintiffs point out, misperceives the proper inquiry.
The question is not whether plaintiffs’ conduct or misconduct created a duty
of care on Eisenhower’s part, but whether the Rowland factors warrant an
exception to Eisenhower’s general duty of care to maintain its property in a
7 For these propositions, Eisenhower cited Hegyes v. Unjian Enterprises,
Inc. (1991) 234 Cal.App.3d 1103, 1133 and McGarry v. Sax (2008) 158
Cal.App.4th 983, 997-998. As will be evident from our discussion below,
these cases do not assist it. In Hegyes, the question was whether a negligent
driver injuring a woman in a car accident owed a “preconception” duty of care
to the child of the woman conceived years later. (Hegyes, at pp. 1108-1109.)
Holding no duty was owed because no “ ‘special relationship’ ” existed
between the motorists (id. at pp. 1119, 1133), the Court of Appeal emphasized
that while foreseeability is the “prime element by which courts are guided” in
determining to whom a legal duty is owed, “the existence of a legal duty is not
to be bottomed on the factor of foreseeability alone.” (Id. at p. 1131.)
McGarry v. Sax explained that the use of special relationships to create
duties has been “largely eclipsed by the more modern use of balancing [the
Rowland] policy factors.” (McGarry v. Sax, at p. 996.) With regard to
foreseeability, McGarry, citing Bigbee v. Pacific Tel. & Tel. Co. (1983) 34
Cal.3d 49, further explained “[i]t is the general character of the event that is
required to be foreseeable.” (McGarry, at p. 997; Bigbee, at pp. 57-58 [“it is
settled that what is required to be foreseeable is the general character of the
event or harm . . . not its precise nature or manner of occurrence” (italics
added)].) In any event, the existence of a duty is determined on a case-by-
case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472;
Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 459.)
15
reasonably safe condition, which, on appeal, Eisenhower concedes it owes to
the public. Eisenhower did not undertake this analysis. It did not engage in
a “comprehensive look at . . . ‘ “ sum total” ’ of the [Rowland] policy
considerations at play . . . .” (Southern California Gas Leak Cases, supra, 7
Cal.5th at p. 399.) While Eisenhower purported to assess foreseeability to
argue it did not owe a duty as a matter of law, it did not consider the policy
factors going to that issue, or any of the other public policy factors. (Kesner,
supra, 1 Cal.5th at p. 1145.)
Further, in arguing it owed no duty, Eisenhower improperly focused on
the factual details of the particular incident. An “important feature” of the
Rowland analysis is that the factors “are evaluated at a relatively broad level
of factual generality.” (Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p.
772; Hassaine, supra, 77 Cal.App.5th at p. 852.) “[T]he court’s task in
determining duty ‘is not to decide whether a particular plaintiff’s injury was
reasonably foreseeable in light of a particular defendant’s conduct, but rather
to evaluate more generally whether the category of negligent conduct at issue
is sufficiently likely to result in the kind of harm experienced that liability
may appropriately be imposed . . . .’ ” (Cabral, at p. 772.) Exceptions to the
general duty of care may be made “only when foreseeability and policy
considerations justify a categorical no-duty rule” (ibid., italics added); this
“preserve[s] the crucial distinction between a determination that the
defendant owed the plaintiff no duty of ordinary care, which is for the court to
make, and a determination that the defendant did not reach the duty of
ordinary care, which in a jury trial is for the jury to make.” (Ibid.) Thus, on
duty, “California law looks to the entire ‘category of negligent conduct,’ not to
particular parties in a narrowly defined set of circumstances. [Citations.] To
base a duty ruling on the detailed facts of a case risks usurping the jury’s
16
proper function of deciding what reasonable prudence dictates under those
particular circumstances.” (Id. at p. 774.)8
Because Eisenhower did not assess whether a categorical exception
should apply to relieve it of its general duty of ordinary care to those coming
on its premises, its motion failed to “ ‘negate theories of [its] liability’ ”
(Hedayati v. Interinsurance Exchange of the Automobile Club, supra, 67
Cal.App.5th at p. 846) with respect to the duty element of plaintiffs’ cause of
action. As a result, Eisenhower did not meet its threshold burden to
establish it owed plaintiffs no duty as a matter of law, and we end our
8 In Cabral v. Ralphs Grocery Co., a truck driver stopped his tractor-
trailer rig alongside an interstate highway in an area designated for
emergency parking so he could eat. (Cabral, supra, 51 Cal.4th at pp. 768-
769.) The decedent, Adelelmo Cabral, who was traveling on the freeway in
his vehicle at 70 to 80 miles per hour, abruptly swerved off the freeway and
crashed into the rear of the trailer. (Id. at p. 769.) Cabral’s widow sued
defendants, alleging the truck driver’s negligence in stopping for
nonemergency reasons on the freeway shoulder caused her husband’s death.
(Id. at p. 770.) In discussing whether the defendants owed a duty of care, the
California Supreme Court emphasized “the factual details of the accident are
not of central importance.” (Id. at p. 774.) “That [the tractor-trailer driver]
parked 16 feet from the outermost traffic lane, rather than six feet or 26 feet;
that parking for emergencies was permitted in the dirt area he chose; that . . .
Cabral likely left the highway because he fell asleep or because of some
unknown adverse health event, rather than from distraction or even
intoxication—none of these are critical to whether [the tractor-trailer driver]
owed Cabral a duty of ordinary care. These facts may have been important to
the jury’s determinations of negligence, causation and comparative fault, but
on duty California law looks to the entire ‘category of negligent conduct,’ not
to particular parties in a narrowly defined set of circumstances.” (Ibid.) The
court framed the duty issue as “whether a freeway driver owes other drivers
a duty of ordinary care in choosing whether, where and how to stop on the
side of the road” or “whether a categorical exception to [the general rule that
persons should take ordinary care] should be made exempting drivers from
potential liability to other freeway users for stopping alongside a freeway.”
(Ibid.)
17
analysis without assessing plaintiffs’ showing. (Accord, ibid.; Mireskandari
v. Edwards Wildman Palmer LLP, supra, 77 Cal.App.5th at pp. 256-257.)
Eisenhower’s additional appellate arguments are unavailing. It
maintains that “this general duty” or the “type of foreseeability” raised by
plaintiffs was not at issue in its summary judgment motion. It argues the
foreseeability it raised in its motion “concerns Appellants’ conduct and the
risk they created by their own conduct in misusing the walker.” Eisenhower
argues “the question is not whether an elderly/infirm pedestrian walking on
[Eisenhower’s] premises is foreseeable. Instead, the question is whether
[Eisenhower] should have anticipated that someone with . . . ‘mobility
impairments,’ would ignore warning and misuse his/her device while on
[Eisenhower’s] premises, and in the process turning [sic] an otherwise non-
negligent area into something unsafe.” Citing Edwards v. California Sports,
Inc. (1988) 206 Cal.App.3d 1284 without discussing it, Eisenhower says
plaintiffs’ conduct “cannot create a duty”; it argues it “did not have a duty to
protect [plaintiffs] from their unforeseeable decision to misuse their walker
as a wheelchair.” It also says the area “only became hazardous when
[plaintiffs] decided to operate their walker as a wheelchair in contravention
to manufacturer warnings” and that “[a]ppellants created the dangerous
condition, not [Eisenhower].”
These arguments still incorrectly frame the question in terms of the
detailed facts of the incident, rather than the general character of the parties’
conduct. Under Cabral (see footnote 8, ante), “[t]hese facts may [be]
important to the jury’s determinations of negligence, causation and
comparative fault, but on duty California law looks to the entire ‘category of
negligent conduct,’ not to particular parties in a narrowly defined set of
circumstances.” (Cabral v. Ralphs Grocery Co., supra, 51 Cal.4th at p. 774).
18
Edwards v. California Sports, Inc., does not compel a different
conclusion. The plaintiff in Edwards was an intoxicated spectator who
climbed a 50-inch high guard fence at a sports arena, then fell and sustained
severe head injuries. (Edwards v. California Sports, Inc., supra, 206
Cal.App.3d at pp. 1286, 1288.) The Court of Appeal reversed a judgment on a
jury’s verdict, concluding it “lack[ed] . . . any evidence to establish that
defendant breached any duty of care in construction of the fence.” (Id. at p.
1287, italics added.; see also id. at p. 1289 [jury’s verdict was “based on the
breach of a duty which, as a matter of law, did not exist”].) The court
explained that the “fundamental inquiry is whether the duty of a landowner
to exercise reasonable care in preventing injury to persons on the premises
. . . required [preventative] measures” and more specifically in that case,
whether the “defendant’s duty of due care require[d] it to design and
construct its building in a manner that would thwart plaintiff’s derring-do[.]”
(Id. at pp. 1287, 1288.) The court based its holding in part on policy
considerations, observing the “fence was clearly adequate for its designed
purpose” and there was a limit as to how far society should go through
government regulation or the tort system “to protect individuals from their
own stupidity, carelessness, daring or self-destructive impulses.” (Id. at p.
1288.) Thus, the Court of Appeal held the defendant had no duty to construct
the fence to prevent the plaintiff's misconduct. (Ibid.)9 The Edwards court
factored social policy into the analysis, as it must. (Parsons v. Crown
Disposal Co., supra, 15 Cal.4th at p. 476 [“ ‘social policy must at some point
intervene to delimit liability’ even for foreseeable injury”].) But as we have
9 To the extent foreseeability was part of the Edwards’s court’s analysis.
we observe that foreseeability for purposes of duty is different from
foreseeability “in the fact-specific sense in which we allow juries to consider
[the] question.” (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 476.)
19
explained, Eisenhower did not undertake the Rowland analysis, and thus did
not meet its initial summary judgment burden on the question of duty.
C. Breach
We reach the same conclusion as to Eisenhower’s summary judgment
showing as to breach. Again, to meet its initial burden, Eisenhower was
required to present evidence that conclusively negated the breach element of
plaintiffs’ cause of action. (Taylor v. Financial Casualty & Surety, Inc.,
supra, 67 Cal.App.5th at p. 979.) On this point, Eisenhower argued, based on
its expert Iler’s declaration, that “[t]he existence of the joint cover was
necessary and proper and conformed to the applicable standards and
guidelines. Further, by having beveled edges, the joint cover exceeded what
the law required. Consequently, using the ‘reasonable person’ standard,
[Eisenhower’s] conduct conformed to the applicable standard of care. The
incident simply could not have been reasonably foreseen by [Eisenhower].”
Eisenhower repeats these arguments on appeal, adding that the trial court
properly sustained objections to plaintiffs’ expert’s declaration.
Iler’s statement that the “location of the incident was constructed
within applicable building and accessibility requirements and codes” and that
the “joint cover conforms to local, state and ADA requirements relative to the
use of wheelchairs and other mobility devices” is relevant to show
Eisenhower exercised due care, but it is not “dispositive” where other factors
require a higher degree of care. (See Lawrence v. La Jolla Beach & Tennis
Club, Inc. (2014) 231 Cal.App.4th 11, 31 [defendant property owner’s
compliance with a law or a safety regulation is relevant to whether a
defendant acted with due care, but such compliance will not be dispositive
“ ‘if there are other circumstances requiring a higher degree of care’ ”]; accord,
Nevis v. Pacific Gas & Elec. Co. (1954) 43 Cal.2d 626, 630 [“Compliance with
20
the general orders of the Public Utilities Commission does not establish as a
matter of law due care by the power company, but merely relieves it ‘of the
charge of negligence per se. It does not affect the question of negligence due
to the acts or omissions of the company as related to the particular
circumstances of the case’ ”]; Howard v Omni Hotels Management Corp.
(2012) 203 Cal.App.4th 403, 421; Amos v. Alpha Property Management (1999)
73 Cal.App.4th 895, 901 [finding “no merit” to the defendant’s summary
judgment argument that the fact a window out of which a child fell “met all
applicable fire, building and safety codes establishes due care as a matter of
law”]; Perrine v. Pacific Gas & Elec. Co. (1960) 186 Cal.App.2d 442, 448
[“even though P.G.&E. complied with all applicable governmental safety
regulations, this would not serve to absolve it from a charge of negligence,
but just negligence per se, for one may act in strict conformity with the terms
of such enactments and yet not exercise the amount of care which is required
under the circumstances”].) In the context of using a statutory standard of
conduct to establish no breach of duty, the California Supreme Court
explains: “Courts have generally not looked with favor upon the use of
statutory compliance as a defense to tort liability. The Restatement Second
of Torts summarizes the prevailing view in these terms: ‘Where a statute,
ordinance or regulation is found to define a standard of conduct for the
purposes of negligence actions, . . . the standard defined is normally a
minimum standard, applicable to the ordinary situations contemplated by the
legislation. This legislative or administrative minimum does not prevent a
finding that a reasonable [person] would have taken additional precautions
where the situation is such as to call for them.’ [Citations.] [¶] But there is
some room in tort law for a defense of statutory compliance. Where the
evidence shows no unusual circumstances, but only the ordinary situation
21
contemplated by the statute or administrative rule, then ‘the minimum
standard prescribed by the legislation or regulation may be accepted by
the triers of fact, or by the court as a matter of law, as sufficient for the
occasion . . . .’ ” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 548; see also
Myrick v. Mastagni (2010) 185 Cal.App.4th 1082, 1087.)
Here, plaintiffs assert that “by virtue of being a hospital, individuals
using canes, walkers, wheelchairs, or relying on prostheses, or other medical
devices significantly impeding their movement, are not only to be expected,
but are specifically the kinds of individuals who are expected and invited to
be at [Eisenhower’s] facilities.” They argue: “Hospitals, which exist to
provide services to individuals who are sick and infirm, including those with
mobile impairments, are subject to a standard of care beyond those
prescribed by the ADA” and thus “the fact that the [e]xpansion [g]ap [p]late
complied with the ADA does not resolve as a matter of law whether
[Eisenhower] complied with the standard of care.” They maintain a
“reasonable juror could readily conclude that a reasonable owner or possessor
of a hospital would have taken additional precautions beyond those
standards codified under the ADA,” which “establishes only a statutory
minimum.”
We are persuaded that in this medical center setting, where patrons
can be infirm or have ambulatory impairments and others commonly use
wheelchairs, walkers, canes and other walking assist devices like Gray’s,
Iler’s declaration is insufficient to meet Eisenhower’s initial burden to negate
the breach element of plaintiffs’ cause of action. Eisenhower argues under a
reasonable person standard that its conduct exceeded the standard of care, on
the basis that the joint cover had beveled edges. But Eisenhower’s expert in
his declaration did not specify that the plate cover had beveled edges, nor did
22
he aver the plate cover exceeded applicable standards; he stated that the
cover was within applicable standards for both beveled and non-beveled
vertical edges. In short, because Eisenhower’s evidence does not conclusively
negate the element of breach, the trial court improperly granted summary
judgment in its favor.
III. Avrit’s Declaration as to His Measurements and Whether the Plate Met
ADA or Building Standards Code Requirements Raises a Triable Issue of
Material Fact as to Breach in Any Event
Even if we were to hold otherwise, that is, that Eisenhower
demonstrated its compliance with ADA or building standards code met the
standard of care as a matter of law so as to conclusively negate the element of
breach, we would nevertheless reverse in view of Avrit’s declaration.
While the formulation of the standard of care is a question of law for
the court, the question of breach is a question of fact for the jury “if
reasonable minds might differ as to whether the defendant’s conduct has
conformed to the standard.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p.
546.) On the issue of compliance with the relevant standards, Avrit’s
conclusions differed from Iler’s, and summary judgment cannot be granted if
it involves “choosing between competing expert opinions.” (Garrett v.
Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 186.)
Avrit stated without objection from Eisenhower that in August 2021, he
“inspected the subject area where [Gray] fell taking relevant photographs and
measurements . . . .” He stated it was his understanding that the “subject
area” was in a substantially similar condition at the time of his inspection as
it was at the time of the incident. Avrit went on to describe the
measurements he and his staff had taken (see fn. 5, ante), explaining “[t]he
slope was measured by placing a digital level flush with the sloped leading
23
edge of the metal cover” and that the measurements he personally took were
“consistent with the measurements taken by [his staff members] in June,
2018 and . . . December, 2019.” He went on to aver: “Based on the
measurements taken on each of [his company’s] inspections, the subject
height differential between the metal threshold and concrete walkway was a
violation of the ADA and the California Building Standards Code at the time
of the incident. The beveled change in level in the threshold exceeded the 1:2
(50.0 [percent]) requirement and instead measured a max of 61.7 [percent].”
(Italics omitted.)
The trial court sustained Eisenhower’s objections to Avrit’s recitation of
the results of his inspection and measurements (the third sentence of
paragraph No. 12 of Avrit’s declaration), as well as his conclusion that the
height differential violated the ADA and California Building Standards Code.
We conclude the evidentiary rulings were improper, whether we review them
de novo or assess them for abuse of discretion.10
Eisenhower’s first objection was that Avrit’s statement of the
measurement he took in August 2021 was irrelevant on grounds (1) the
inspection was not permitted or authorized and Eisenhower did not know
about it; (2) Avrit “fail[ed] to state that he took measurements in the area
where the incident occurred,” and as a result, (3) “there is no foundation for
his opinion the vertical measurement in that area exceeded 1/4 [inch].”
10 The standard of review for assessing the court’s evidentiary rulings in
the summary judgment context is not settled, though the weight of authority
applies an abuse of discretion standard. (See Reid v. Google, Inc., supra, 50
Cal.4th at p. 535 [“[W]e need not decide generally whether a trial court’s
ruling on evidentiary objections based on papers alone in summary judgment
proceedings are reviewed for abuse of discretion or reviewed de novo”];
Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206,
226 [acknowledging Reid but holding the standard of review varies depending
on the type of evidentiary objection].)
24
Eisenhower further objected that Avrit’s declaration on these points violated
Evidence Code sections 801 and 802, and lacked foundation in that he
“fail[ed] to lay the foundation the testing technique and method he utilized to
measure the slope of the beveled edge of the expansion joint cover was
acceptable,” nor did he “lay the required foundation that the device he
utilized to measure the slope of the beveled edge of the expansion joint cover
was properly calibrated” or “that the numbers displayed on his device in fact
correlate to the measurement of the angle of the slope of the beveled edge of
the expansion joint cover.”
Opposing declarations on summary judgment, including expert
declarations, must be liberally construed. (Alexander v. Scripps Memorial
Hospital La Jolla, supra, 23 Cal.App.5th at p. 225; Garrett v. Howmedica
Osteonics Corp., supra, 214 Cal.App.4th at p. 189.) Courts must be cautious
about excluding expert testimony. (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 772.) “ ‘The goal of trial court
gatekeeping is simply to exclude “clearly invalid and unreliable” expert
opinion. [Citation.] In short, the gatekeeper’s role “is to make certain that
an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” ’ ” (Garrett, at p.
187.) In the summary judgment context, the rule of liberal construction
means “a reasoned explanation required in an expert declaration filed in
opposition to a summary judgment motion need not be as detailed or
extensive as that required in expert testimony presented in support of a
summary judgment motion or at trial.” (Id. at p. 189.)
None of Eisenhower’s grounds justified excluding these portions of
Avrit’s declaration, liberally construing it as we must. Though Eisenhower
25
complains it was unaware of Avrit’s inspection of its premises, Eisenhower
cites no California authority for the proposition that those circumstances
warrant exclusion of the evidence. 11 To the contrary, the availability of
discovery does not preclude an independent investigation of a place that is
open to the public. (See Pullin v. Superior Court (2000) 81 Cal.App.4th 1161,
1165 [“[P]roperty open to the public can be examined without recourse to
[Code of Civil Procedure] section 2031 . . . provided that the examination can
be conducted in a lawful fashion”].)
Further, Avrit’s statement in the unchallenged portion of his
declaration that he “inspected the subject area where [Gray] fell taking
relevant photographs and measurements” (italics added), liberally construed,
permits an inference that his measurements were taken in the location where
the accident occurred. While the record contains some photographs
appearing to show Avrit measuring in an area some feet away from
Eisenhower’s entrance, Eisenhower acknowledges there are other
photographs; it does not establish these images are not from the medical
center entrance.
We are unpersuaded that the court properly sustained Eisenhower’s
objections about the absence of foundation or detail to demonstrate
“acceptable” testing techniques and methods, Avrit’s “proper[ ]” calibration of
11 Eisenhower cites a case in which a federal district court judge ruled
Avrit’s opinions inadmissible because they were based on an unauthorized
inspection. But the court’s ruling was based on the Federal Rules of Civil
Procedure, rule 34(a)(2), and (b). (Nakamura v. Lowe’s Companies, Inc.
(C.D.Cal., Aug. 19, 2015, No. 2:14-cv-9574-ODW(ASx)) 2015 WL 4945722, at
*3.) It does not persuade us to change our conclusion. Eisenhower also
complains that plaintiffs denied in discovery responses that an inspection by
one of Avrit’s staff members ever took place, and that plaintiffs should be
“estopped” from using the materials from that inspection. It cites no
authority for that proposition, however,
26
the measuring device, or the correlation of the device’s numbers with the
joint cover’s slope. Avrit stated he measured the slope “by placing a digital
level flush with the sloped leading edge of the metal cover” and his
photographs additionally show his use of a metal ruler. At the summary
judgment stage, “[t]hose imperfections do not make [Avrit’s] sources so
unreliable or speculative as to lead to rejection. So long as foundational
reliability is met, the strength of an expert’s assumptions affects the weight
rather than the admissibility of the opinion.” (Howard Entertainment, Inc. v.
Kudrow (2012) 208 Cal.App.4th 1102, 1121.)
These claimed deficiencies are akin to the claims rejected in Garrett v.
Howmedica Osteonics Corp., supra, 214 Cal.App.4th 173. In Garrett, a
products liability action against the supplier of a prosthetic bone, the
defendant in a summary judgment context argued the plaintiff’s opposing
expert declaration was inadmissible for lacking a reasoned analysis because
the expert did not describe the testing methods used to reach his conclusion.
(Id. at 185.) The Court of Appeal, reviewing the requirements of Evidence
Code sections 801 and 802, concluded the absence of more specific
information on the expert’s testing methods did not justify the exclusion of
his conclusions on grounds they were speculative, conjectural, or lacked a
reasonable basis. (Garrett, supra, at pp. 186-189.) Garrett explained that
“[i]n light of the rule of liberal construction, a reasoned explanation required
in an expert declaration filed in opposition to a summary judgment motion
need not be as detailed or extensive as that required in expert testimony
presented in support of a summary judgment motion or at trial.” (Id. at pp.
27
183, 189.)12 As in Garrett, we conclude the trial court failed to liberally
construe Avrit’s opposing summary judgment declaration. Avrit described
his testing methods and their results. His recitation of the measurements he
12 The expert in Garrett, Lawrence Kashar, declared that he “ ‘conducted
extensive examinations of the portions of the prosthetic device that were
removed from Mr. Garrett using visual examination, optical microscopic
examination, X-ray radiography, fluorescent dye penetrant examination,
scanning electron microscopy, and such destructive testing as hardness
testing, micro hardness testing, microstructural analysis, and chemical
analysis.’ ” (Garrett v. Howmedica Osteonics Corp., supra, 214 Cal.App.4th at
p. 187.) “He declared that he had determined, based on his examinations,
that the fractured portion of the prosthesis was softer than the ‘minimum
required hardness’ in two of the three ASTM [American Society for Testing
and Materials] specifications covering the alloy for use in an implant and was
less than the ‘expected hardness’ of the third specification.” (Ibid.) The
Court of Appeal found the explanation sufficient to support his opposing
summary judgment opinion: “In our view, Kashar’s failure to describe the
particular testing processes that he used to arrive at his conclusions
regarding the hardness of the prosthesis and his failure to more particularly
describe the results of that testing do not in any manner indicate that his
conclusions are speculative, conjectural or lack a reasonable basis.” (Ibid.) It
reached the same conclusion with regard to the expert’s failure to identify the
particular ASTM specifications he considered, stating the “absence of that
information does not render the declaration conclusory and cannot justify the
conclusion that there was no reasonable basis for Kashar’s opinion.
Moreover, Kashar’s failure to expressly state that the prosthesis should have
complied with the ASTM specifications for Cobalt—28 [percent] Chromium—
6 [percent] Molybdenum alloy and his failure to expressly state that the
purported defect was a cause of the device’s failure are immaterial because
those matters are readily inferable from the facts and opinion expressly
stated.” (Id. at p. 188.) Here, Avrit’s analysis in this case was not nearly as
complex, as it involved measuring the height difference between the walking
surface and the edge of the metal plate with a digital level and ruler. The
requirements of Evidence Code sections 801 and 802 provided no basis to
exclude the objected-to statements and conclusions on the question of breach.
28
took and whether they complied with the ADA or California Building
Standards Code should not have been omitted or deemed insufficient at the
summary judgment stage. To adopt language in Garrett, supra, 214
Cal.App.4th 173, “[w]hatever shortcomings . . . cross-examination may or
may not reveal in [Avrit’s] testing methods and opinion, we believe that the
absence of more specific information as to the . . . methods used and the
results obtained would not provide any grounds for the trial court to conclude
that there was no reasonable basis for [his] opinion.” (Id. at p. 187.)
DISPOSITION
The judgment is reversed. Plaintiffs are to recover costs on appeal.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
29