Shortly after unknown individuals removed a snow grate in front of a door at Whiskey Creek Restaurant in Mammoth Lakes (the restaurant), plaintiff Edgar Ward Jones walked out the door and fell through the opening in the deck. Jones sued defendant Whiskey Creek Restaurants, Inc. (the owner) for negligence and premises liability. Greg Alexander was the sole shareholder of the owner.
The owner moved for summary judgment, arguing there was no evidence it breached any duty of care owed to Jones or that any breach proximately caused an injury to him. The trial court granted the motion, finding that video evidence showed the snow grate was removed 9 to 10 seconds before Jones fell through the opening, giving the owner insufficient time to protect Jones. The trial court also explained that foreseeability is a crucial factor for determining the scope of the duty of care. Since there was no evidence the snow grate had ever been removed by third parties before, the trial court held the removal of the grate was not sufficiently foreseeable to impose a duty on the owner to take additional preventative measures. The California Court of Appeal for the Third Appellate District affirmed.
On appeal, Jones now contended: (1) the owner had a duty to control third-party misconduct by assigning a security guard to monitor the deck and by locking the snow grate; (2) the trial court erred in finding good cause to hear the summary judgment motion within 30 days of trial, and Jones had insufficient time to oppose the motion; and (3) the trial court erred in sustaining the owner’s objection to a particular paragraph in an expert declaration presented by Jones.
Regarding Jones’ first contention, the California Court of Appeal for the Third Appellate District concluded that Jones did not raise a triable issue regarding the owner’s duty to take additional preventative measures because Jones could not show the removal of the snow grate was reasonably foreseeable. Jones presented evidence that during the period from July 2003 through December 31, 2009, various criminal acts at the restaurant resulted in incident reports by the Mammoth Lakes Police Department. The court reasoned that none of those prior reports would have alerted the owner to monitor the snow grate to prevent a patron from falling through it. Jones presented no other evidence demonstrating heightened foreseeability that third parties would tamper with the snow grate at the restaurant, and the owner had no duty to post a security guard on the deck to deter third persons from tampering with the snow grate in the absence of prior similar incidents or other “sufficiently serious ‘indications of a reasonably foreseeable risk'” of the harm. Accordingly, Jones could not demonstrate that the owner owed him a duty to undertake the preventative measures he proposed. Since Jones could not prove a necessary element of his causes of action, the trial court did not err in granting the summary judgment motion.
The court next rejected Jones’ claim that the trial court erred in finding good cause to hear the summary judgment motion within 30 days of trial, and Jones had insufficient time to oppose the motion. The trial court found the notice period did not result in prejudice to Jones. The appeals court agreed that this finding was supported by the record. Jones received 76 days’ notice of the owner’s motion. Counsel for Jones opposed the owner’s motion on procedural and substantive grounds. He presented a number of supporting declarations and a lengthy argument at the hearing, and he interposed numerous evidentiary objections. Counsel for Jones said he would have been able to present additional evidence in opposition to the owner’s summary judgment motion if the owner had timely filed the motion, but he did not identify what additional evidence he would have presented. The trial court did not abuse its discretion, and Jones did not establish a reversible error.
Finally, the appeals court held that Jones failed to demonstrate that the the trial court erred in sustaining the owner’s objection to paragraph 3 of the declaration of Gerry LaFramboise (a general contractor with substantial experience in construction in the Mammoth Lakes area). LaFramboise averred in paragraph 3 of his declaration that a locking mechanism for any snow grate would be fairly simple to install. He estimated a locking mechanism could be installed on a metal snow grate that was approximately 5 feet by 3 feet in size by adding “a couple of lag bolts and/or big screws,” at a cost of $75 in labor and materials.
The court held that Jones did not establish a miscarriage of justice. Even if the averments in paragraph 3 of the LaFramboise declaration had been admitted, it would not change the conclusion that the owner did not have a duty to take preventative measures. The LaFramboise declaration addressed the burden to lock the grate, but it did not address foreseeability. The court held it was not reasonably foreseeable that third parties would remove the snow grate and cause a patron to fall through the deck opening. Accordingly, it was not reasonably probable that Jones would have prevailed on the summary judgment motion if the trial court had not excluded the averments in paragraph 3 of the LaFramboise declaration.
For these reasons, the court affirmed the judgment.
The Superintendent concluded in a statement last month that the district will remain committed to protecting the children they serve and will respond vigorously to any action that runs contrary to this goal.
The premises liability lawyers at the Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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