Aparicio v. Vons Cos.
| Decision Date | 17 November 2020 |
| Docket Number | B301017 |
| Parties | APRIL APARICIO, Plaintiff and Appellant, v. THE VONS COMPANIES, INC., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC711305)
APPEAL from a judgment of the Superior Court of Los Angeles County, Laura A. Seigle, Judge. Affirmed.
Law Office of Maximilian Lee and Maximilian Lee for Plaintiff and Appellant.
Stone|Dean, Gregory E. Stone and Amy W. Lewis for Defendant and Respondent.
April Aparicio appeals from a judgment entered after the trial court granted the summary judgment motion filed by the Vons Companies, Inc. (Vons). Aparicio sued Vons for premises liability after she slipped and fell on what she believes was melted ice cream on the floor of a Vons supermarket. Aparicio contends the trial court erred in entering judgment on her claim because triable issues of fact existed whether Vons caused ice cream to spill onto the floor; whether Vons had actual or constructive notice of a spill; and whether the presence of an unattended shopping cart in the aisle created a dangerous condition. Aparicio also contends the trial court erred in sustaining Vons's objections to her and her expert's declarations. We affirm.
On the afternoon of Sunday, March 25, 2018 Aparicio was shopping at a Vons supermarket in Covina when she slipped and fell to the floor in aisle 5, a frozen foods aisle. Aparicio believes she slipped on spilled and melted ice cream. Aparicio testified at her deposition, "I just remember walking down the aisle, and my legs giving out on me, and I was on the floor." Aparicio felt a wetness she described as "gooey or slippery stuff" on the floor and on her hands and elbows where they hit the floor. Aparicio did not know where the liquid came from. Aparicio did not see anysubstance on the floor before or after she fell, and she could not remember if she looked for any wetness or stickiness on her clothing. Instead, she said she fell on something like "slippery ice cream on the floor." When asked how she knew it was ice cream, Aparicio responded, "I was in the ice cream section." Aparicio was about halfway down the aisle when she fell. She recalled seeing a shopping cart with "boxes of some sort" in her peripheral vision at the time she fell. She did not examine the boxes in the shopping cart and did not know what they contained.
A few minutes after Aparicio fell, Vons assistant store manager Esmerelda Sadler went to aisle 5 to investigate. In her deposition, Sadler testified she found nothing on the floor: Sadler did not examine the shopping cart with cardboard boxes near where Aparicio fell. Sadler took photographs of the floor and Aparicio's shoes and pants.2 Aparicio then filled out an incident report in which she stated the cause of her fall was "slippery ice cream[,] slippery floor."
On June 22, 2018 Aparicio filed this action against Vons3 asserting premises liability claims for negligence and willful failure to warn.4 Aparicio alleged Vons's floor was "negligentlymaintained, installed, or used" and was "unreasonably and unsafely slick, wet, and/or slippery."
The parties stipulated to the authenticity of video surveillance of aisle 5 recorded from approximately 2:30 p.m. to 3:30 p.m. on March 25, 2018. Aparicio lodged with her appeal an excerpt of this video that begins at 2:45 p.m. on its digital timestamp and ends at 3:05 p.m. The video shows aisle 5 with tall freezer cases on both sides of the aisle, a shopping cart filled with large brown cardboard boxes sitting unattended in the middle of the aisle, and a hand truck standing against a freezer to the left of the shopping cart.5 The shopping cart and hand truck together blocked just over half of the left side of the aisle, leaving an open passage to the right of the shopping cart. The video shows a yellow safety cone at the far end of the aisle, but the cone is barely visible in the video, and it is unclear whether the cone was placed in aisle 5 or in the perpendicular aisle.
The video shows that at approximately 2:45 p.m. a shopper passed to the right of the shopping cart and slowly walked through the area where Aparicio later fell.6 At 2:55:17 Vons storeclerk Dylan Priestly pushed a dry mop that appears to be approximately four feet wide down aisle 5, passing through the area to the right of the shopping cart. Priestly maintained a constant pace, reaching the end of the aisle at 2:55:35. About one minute later (at 2:56:26) two shoppers walked side by side and pushed a shopping cart through the area where Aparicio later fell. Around the same time Aparicio entered aisle 5 from the opposite end of the aisle carrying a shopping basket on her left arm. Aparicio passed the two shoppers before reaching the shopping cart at 2:56:40. Four seconds later, as Aparicio walked to the right of the unattended shopping cart, she slipped and began to fall sideways. As she fell, Aparicio reached her right arm out and touched the shopping cart, which rolled about a foot away, and Aparicio landed on the floor. No substance is discernable on the floor where Aparicio fell, which is shiny and white in the surveillance video.
At 2:56:54 the two shoppers who had just passed by returned to help Aparicio to her feet, and they gathered the items that had fallen out of Aparicio's shopping basket. At 2:58:31 Aparicio walked down the aisle toward the camera and out of the frame. At 2:59:25 Sadler walked down the aisle toward the shopping cart, then returned one minute later and pointed to scuff marks on the floor about 10 feet from where Aparicio fell. Sadler then continued down the aisle away from the camera and appears to talk to another Vons employee. Sadler walked through the area where Aparicio fell, but she did not stop in thearea. Between 3:01 and 3:04 p.m. six people who appear to be customers walked through the area where Aparicio fell.
The surveillance video includes several gaps in the time stamp, including a 30-second gap after Priestly swept aisle 5 at 2:55:35 and just before the two shoppers and Aparicio entered the aisle at 2:56:26. Store director David Barragan testified in his deposition he believed the video cameras recorded constantly and he was not aware of any gaps in the footage of aisle 5 on March 25, 2018, but he added, "I don't know if [the cameras] turn off automatically or there [sic] are sensor driven or I don't recall."
On the afternoon of March 24, 2018 the freezers along one side of aisle 5 malfunctioned and could not maintain a sufficiently cold temperature, requiring the removal of all frozen food until repairs could be made. According to Barragan, the freezers had not been repaired as of March 25 (the day of Aparicio's fall), so they remained empty. Vons clerk Fabio Gaitan testified in his deposition he saw his coworkers using pallet jacks, shopping carts, and "banana boxes" to remove all the ice cream, pizza, and other frozen foods from the entire area and place the items in cold storage in the back of the store.7 Gaitan did not notice any liquid pooling on the floor in aisle 5 while the freezers were broken. Gaitan did not testify as to the date or time when the freezers were emptied. But Gaitan testified his scheduled shifts in March 2018 ended at noon, and Vons reported the broken freezer at 12:48 p.m. on March 24. Thus, as Aparicioargues, Gaitan's testimony supports a reasonable inference he saw the frozen food being removed on the morning of March 25. Sadler testified to the contrary that because she worked on March 25 and not March 24, and she did not see workers removing the frozen foods, the removal "had to have happened sometime Saturday" (March 24) or overnight.
Sadler did not know why a shopping cart filled with cardboard boxes was sitting in aisle 5 for at least 25 minutes prior to Aparicio's fall on March 25. But she also was not aware of any Vons policy prohibiting a shopping cart from remaining in an aisle for that length of time. Priestly testified in his deposition he had no recollection of seeing the shopping cart full of cardboard boxes when he swept aisle 5 on March 25 shortly before the incident, and after viewing the video footage, he acknowledged he did not examine the cart or the cardboard boxes in it. Asked by Aparicio's counsel what he was supposed to do if he came upon a shopping cart full of boxes in a store aisle, Priestly responded, "[P]robably, if I see a cart full of boxes, probably [tell] my supervisor." Priestly agreed it would be a good idea to report an unattended shopping cart "maybe for safety reasons or . . . somebody get[ting] hurt or something, slip and fall, I guess."
On March 15, 2019 Vons filed a motion for summary judgment, arguing there were no triable issues of material fact that (1) Vons conducted reasonable inspections of the premises, including a floor sweep less than two minutes before Aparicio's fall; (2) Vons did not create any hazard that caused Aparicio's fall; and (3) Vons did not have reasonable time to discover andcorrect any hazard. The motion was supported by declarations from Barragan and Priestly, deposition excerpts, images from the surveillance video, and photographs of the floor and Aparicio's clothing taken after the incident.
Priestly declared Vons's policies required a recorded sweep and inspection of the sales floor at least once every hour, which was...
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