Romero v. American Multi-Cinema, Inc. CA4/1 ( 2023 )

Filed 5/16/23 Romero v. American Multi-Cinema, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALMA ROMERO, D080327
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00024796-CU-PO-CTL)
AMERICAN MULTI-CINEMA, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Reversed.
Sullivan, Rivera, Osuna & Sullivan and Luis O. Osuna for Plaintiff and
Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Brian T. Moss, Karen Liao
and Mark Wilson, for Defendant and Respondent.
In this trip-and-fall case, plaintiff Alma Romero appeals from a
judgment entered against her after the trial court granted a defense motion
for summary judgment in her premises liability case against defendant
American Multi-Cinema, Inc. (AMC). The trial court found that a bolt
fragment embedded in a concrete walkway and protruding one-half inch
above the surface about 10 feet in front of the box office of AMC’s movie
theater constituted a trivial defect as a matter of law. Based on our de novo
review and the holding of Dolquist v. City of Bellflower (1987) 196 Cal.App.3d
261, 267–268 (Dolquist), we conclude that reasonable minds could differ as to
whether the defect presented a substantial risk of injury. Accordingly, we
reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
Between 6:00 p.m. and 6:30 p.m. on July 10, 2019, Romero and her
boyfriend, Albert Magana, were taking his nephews to the movies at the
AMC Promenade Movie Theater on Dennery Road in San Diego. It was a
sunny day, and Romero was wearing flip-flop sandals. She had never been to
that movie theater before.
As they were walking directly to the movie theater from the parking lot
right outside, Romero’s right foot hit a metal object protruding from the
walkway about 10 feet away from the AMC box office. Her sandal got stuck
on the protrusion, and she lost her balance and fell. She suffered injuries
that required medical attention.
There were six metal studs protruding from the walkway where
Romero fell. They appeared to be the remains of some bolts that had been
left there after a light post was removed earlier in 2019. There were
construction barricades outside the theater on the date of the incident.
Romero tripped on the highest of the bolts. In deposition, she initially
estimated that it was about one inch high, but then revised her estimate to a
little over one-half inch after she was shown a ruler. Magana also estimated
that it was about one-half inch high. The other protruding bolts were less
than one-half inch high, and one was almost completely flat.
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Romero was looking ahead towards the box office when she fell. She
did not see the bolts because they were the same “grayish” color as the
concrete and there were no warning signs or cones.
After the fall, Romero reported the incident to the AMC manager. The
manager nodded her head as if to acknowledge that she was already aware of
the bolts. Magana offered to show them to her, but “she said that was fine.”
Romero was not aware of anyone else having suffered a similar fall at the
AMC theater.
B. Trial Court Proceedings
Romero filed a complaint against AMC alleging a single cause of action
for premises liability. She alleged that AMC and its agents “created a
dangerous condition when they removed a sign post that was positioned near
the box office. When they did this they cut out the metal bolts holding the
post and allowed the remaining portion of the bolts to stick up above the level
of the ground creating a tripping hazard. Plaintiff, Alma Romero[,] tripped
on one of these metal bolts and fell to the ground causing her injuries.”
AMC filed a summary judgment motion asserting that the condition
was a trivial defect as a matter of law. In opposition, Romero argued that
there were triable issues of material fact on the issue.
The trial court granted AMC’s motion for summary judgment and
found that the protruding bolts constituted a trivial defect as a matter of law.
The court based its decision on the “undisputed” facts that “the protrusions
ranged from ‘almost completely flat’ to approximately 1/2 inch,” “Plaintiff
does not know how long the protrusions had been on the ground, whether
there had been any prior incidents, or whether Defendant even knew of the
condition,” and “it was a sunny day [and] there was nothing obstructing
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Plaintiff’s view of the sidewalk.” After the court entered judgment for AMC,
Romero filed a timely appeal.
DISCUSSION
The sole question presented in this appeal is whether the protruding
metal bolt that caused Romero to trip and injure herself on AMC’s premises
constituted a trivial defect as a matter of law. We review the trial court’s
summary judgment ruling de novo, liberally construing the evidence and
drawing all reasonable inferences in support of Romero as the party opposing
the motion. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103
(Huckey).)
“It is well established that a property owner is not liable for damages
caused by a minor, trivial or insignificant defect in property.” (Caloroso v.
Hathaway (2004) 122 Cal.App.4th 922, 927 (Caloroso).) “Courts have
referred to this simple principle as the ‘trivial defect defense,’ although it is
not an affirmative defense but rather an aspect of duty that plaintiff must
plead and prove. The ‘trivial defect defense’ is available to private,
nongovernmental landowners.” (Ibid.)
“In limited circumstances a court may determine a walkway defect is
trivial as a matter of law.” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226
(Fajardo).) “ ‘Where reasonable minds can reach only one conclusion—that
there was no substantial risk of injury—the issue is a question of law,
properly resolved by way of summary judgment.’ ” (Ibid.) “But where
‘sufficient evidence has been presented so that reasonable minds may differ
as to whether the defect is dangerous,’ summary judgment is inappropriate.”
(Ibid., internal quotation marks omitted.) If “reasonable minds may differ as
to whether the defect presents a substantial risk of injury, the court may not
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conclude that the defect is trivial as a matter of law.” (Huckey, supra, 37
Cal.App.5th at p. 1105.)
There are two steps in determining whether a walkway defect is trivial
as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105.) First, the
court must review the evidence regarding the type and size of the defect.
Second, the court must consider evidence of any additional factors bearing on
whether the defect presented a substantial risk of injury. If the
circumstances do not indicate that the defect was sufficiently dangerous to a
reasonably careful person, the court should deem the defect trivial as a
matter of law. (Ibid.)
A defect cannot be found trivial as a matter of law based solely on its
size, “since a tape measure alone cannot be used to determine whether the
defect was trivial.” (Caloroso, supra, 122 Cal.App.4th at p. 927.) “A court
should decide whether a defect may be dangerous only after considering all of
the circumstances surrounding the accident that might make the defect more
dangerous than its size alone would suggest.” (Ibid.) There is no “minimum
level of irregularity . . . required to defeat summary judgment.” (Fajardo,
supra, 85 Cal.App.5th at p. 229.)
We begin our analysis with the type and size of the defect. (Huckey,
supra, 37 Cal.App.5th at p. 1105.) With regard to the type, we must take into
account “whether the defect consisted of a mere difference in level of two
adjacent horizontal slabs as distinguished from a protrusion such as a piece
of steel reinforcement (rebar) sticking above the concrete . . . .” (Dolquist,
supra, 196 Cal.App.3d at pp. 267–268.) “Unlike sidewalk cases, where the
planes are horizontal, a protrusion such as a piece of metal rebar located in
an area where foot traffic occurs poses a greater danger . . . .” (Id. at p. 270.)
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The type of defect at issue here is a metal object embedded in and protruding
from a concrete walkway, not an uneven sidewalk.
With regard to size, the bolt Romero tripped over protruded
approximately one-half inch above the concrete. In cases involving uneven
sidewalks, California courts have generally found elevation differences of up
to one inch or even more to be trivial as a matter of law. (See Huckey, supra,
37 Cal.App.5th at p. 1107 [“Sidewalk elevations ranging from three-quarters
of an inch to one and one-half inches have generally been held trivial as a
matter of law”].) But in Dolquist, the court found that a one-quarter inch
protrusion of steel that caused the plaintiff to trip over a concrete tire stop
was not a trivial defect as a matter of law. (Dolquist, supra, 196 Cal.App.3d
at pp. 266–270.) Because this case involves a similar type of metal protrusion
from a concrete surface, the type and size of the defect alone do not establish
the existence of a trivial defect as a matter of law.
We next consider additional factors bearing on whether the defect
presented a substantial risk of injury. In Dolquist, the plaintiff tripped when
her heel caught on a piece of rebar that was protruding one-quarter inch from
the top of a concrete tire stop in a parking lot. (Dolquist, supra, 196
Cal.App.3d at pp. 264–265.) There was no evidence of any prior accident
involving the protrusion, and the accident occurred in broad daylight. (Id. at
pp. 265, 269.) Considering the totality of circumstances, the Court of Appeal
concluded that the one-quarter inch protrusion located in an area where foot
traffic occurred was not a trivial defect as a matter of law. (Id. at pp. 268–
271.) The court noted that “some protrusions become more dangerous the
less visible they are.” (Id. at p. 269.) “In the case at bar, the protrusion was
large enough to cause an injury while being small enough to avoid easy
detection. The condition was not one that resulted from wear or tear, nor was
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it the result of a change in the weather; it was one that existed from the date
of installation of the concrete tire-stop and remained constant.” (Id. at
p. 270.) Thus, the court reversed a summary judgment ruling in favor of the
defendant. (Id. at p. 271.)
The facts of this case are similar in many respects. This case also
involves a metal protrusion from the concrete caused by human conduct,
rather than an uneven walking surface caused by natural settling or wear
and tear over time. As in Dolquist, the protrusion was in an area where foot
traffic occurred—directly in the path between the parking lot and the movie
theater and only 10 feet from the box office. The protrusion was large enough
to cause an injury while being small enough to avoid detection. The accident
occurred in daylight, and there was no evidence of prior similar accidents.
There are also some dissimilarities. Unlike Dolquist, the protrusion
here was on the surface of an otherwise level walkway, not on the top of an
elevated tire stop. But it is unclear which is more dangerous. Someone
stepping over a tire stop would naturally look down to gauge its height,
whereas someone walking on a level concrete walkway would not necessarily
be looking down. The protrusion in this case was also twice as high as the
protrusion in Dolquist—one-half inch versus one-quarter inch. And there
was evidence that the protrusions here were especially difficult to detect
because their grayish color blended in with the concrete surface.
Finally, the plaintiff in Dolquist presented expert testimony that the
protrusion presented a tripping hazard, whereas neither party in this case
presented expert testimony. (Dolquist, supra, 196 Cal.App.3d at pp. 265,
268–269.) But determining whether the trivial risk doctrine applies as a
matter of law is ultimately “a question of law” for the court to decide.
(Caloroso, supra, 122 Cal.App.4th at p. 929.) Thus, expert testimony on the
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subject is not determinative. (See, e.g., Davis v. City of Pasadena (1996) 42
Cal.App.4th 701, 705 [finding trivial risk as a matter of law despite expert
testimony that it was a significant risk and dangerous condition]; see also
Caloroso, at p. 928 [“regardless of whether a witness can be found to opine on
the subject of a dangerous condition, the court must independently evaluate
the circumstances”]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732
[rejecting plaintiff’s expert testimony in finding defect to be trivial as a
matter of law and holding “there is no need for expert opinion” on the issue].)
Weighing all the relevant circumstances, we conclude that, as in
Dolquist, reasonable minds could differ as to whether the defect presented a
substantial risk of injury. On this record, the issue simply cannot be resolved
as a question of law. Accordingly, the trial court erred by ruling that the
defect was trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at
p. 1105.)
We are not persuaded by the trial court’s reasoning. First, as we have
discussed, the one-half inch height of the protrusion alone does not establish
a trivial defect as a matter of law. (Dolquist, supra, 196 Cal.App.3d at
pp. 266–270.) Second, the trial court concluded that “Plaintiff does not know
how long the protrusions had been on the ground, whether there had been
any prior incidents, or whether Defendant even knew of the condition.” But
Romero presented evidence that the protrusions were caused by the removal
of a light pole earlier in 2019—which may even have been part of the ongoing
construction that was still occurring on the day of the incident in July 2019.
If the condition had only been in existence for a short time, the fact that there
was no evidence of prior tripping or falling incidents has little significance in
determining whether the defect was trivial. Notably, AMC presented no
evidence as to when the light pole was removed and the bolts left exposed—
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even though it is reasonable to assume that AMC had access to this
information. AMC also did not contest that it had notice of the defect in its
moving papers. On the contrary, AMC affirmatively argued that it was
“irrelevant” to the trivial defect issue whether it had notice of the condition.
And there was some evidence that the AMC manager had prior knowledge of
the condition and declined Magana’s offer to show her the bolts, inferably
because she already knew about them.
Finally, the trial court relied on the fact that “it was a sunny day [and]
there was nothing obstructing Plaintiff’s view of the sidewalk.” But the trip-
and-fall incident in Dolquist also occurred in broad daylight, yet the court
still concluded that the one-quarter inch protrusion was not a trivial defect as
a matter of law. (Dolquist, supra, 196 Cal.App.3d at p. 269; see also
Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28–30
[holding that recessed drain with depths ranging from 1/32 inch to 5/16 inch
did not constitute trivial defect as a matter of law, even though plaintiff fell
on a sunny afternoon in a well-lit area and there was nothing obstructing her
view of the drain].) The trial court’s reasoning also fails to account for the
facts that: (1) the protrusions were not visible to Romero because they were
the same grayish color as the concrete surface; and (2) they were located in a
place where AMC patrons walking directly from the parking lot to the movie
theater would naturally be looking straight ahead towards the box office just
10 feet away, rather than down at the ground. We therefore conclude that
the trial court erred by granting summary judgment and finding the defect to
be trivial as a matter of law.
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DISPOSITION
The judgment is reversed. Romero is entitled to recover her costs on
appeal.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
CASTILLO, J.
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