Brown v. Poway Unified School Dist., S023272

• Citation: 4 Cal.4th 820,843 P.2d 624,15 Cal.Rptr.2d 679
• Decision Date: 21 January 1993
• Docket Number: No. S023272,S023272
• Court: United States State Supreme Court (California)
• Parties: , 843 P.2d 624, 79 Ed. Law Rep. 1109 Francis BROWN, Plaintiff and Appellant, v. POWAY UNIFIED SCHOOL DISTRICT, Defendant and Respondent

Page 679

15 Cal.Rptr.2d 679

4 Cal.4th 820, 843 P.2d 624, 79 Ed. Law Rep. 1109

Francis BROWN, Plaintiff and Appellant, v. POWAY UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. S023272.

Supreme Court of California

Jan. 21, 1993.

[4 Cal.4th 823] [843 P.2d 626] James H. Miller and Douglas A. Stoodt, Poway, for plaintiff and petitioner.

Stutz, Gallagher & Artiano, Daniel R. Shinoff, Jack M. Sleeth, Jr., Susan L. Mason, Richard C. Thomas and Sidney A. Stutz, San Diego, for defendant and respondent.

John W. Witt, City Atty., Eugene P. Gordon, Chief Deputy City Atty., Leslie J. Girard, Deputy City Atty., San Diego, Fred J. Hiestand, Sacramento, Liebman, Reiner & McNeil and Joseph R. Zamora, Los Angeles, as amici curiae on behalf of defendant and respondent.

PANELLI, Justice.

Plaintiff sued a public entity to recover for personal injuries after he slipped and fell on public property. The Court of Appeal held that the doctrine of res ipsa loquitur precluded summary judgment for the public entity even though there was no evidence to show how the slippery object came to be on the floor or that the public entity had notice of the hazard. We reverse.

BACKGROUND

Plaintiff Francis Brown sued defendant Poway Unified School District (hereafter District) after he slipped and fell on the District's property. [4 Cal.4th 824] Brown, a self-employed computer repairman, was delivering computers to the District's facilities building at 9:30 a.m. on Monday morning. Brown parked his van near a door and, with the help of a District employee, made five trips down a hallway between the van and the room where the computers were stored. On the last trip back to his van, Brown slipped and fell. The employees who helped Brown to his feet found a fresh slice of lunch meat stuck to the sole of his shoe.

Brown sued the District. The ensuing discovery generated declarations or deposition testimony from every person known to have entered the hallway between Friday afternoon, when the floor was swept, and Monday morning, when the accident occurred. These persons included the janitor who swept the floor, the employee who helped Brown unload computers and who had also opened the building earlier that morning, and a maintenance clerk. Although only employees of the District possessed keys to the building, nonemployees were often present. Indeed, three nonemployees had been in the hallway the morning of the accident: Brown, himself; a vendor who was in the building to repair tools; and a school bus driver who also worked for a vendor of telecommunications equipment. No one saw lunch meat on the hallway floor prior to the accident.

Outside the building there was a picnic table where employees sometimes ate their lunches. However, no one had seen anyone eating at the table or in the hallway on the morning the accident occurred.

Based on the uncontradicted evidence, the District moved for summary judgment under Government Code section 835. ¹ This statute sets out the conditions under which "a public entity is liable for injury caused by a dangerous condition of its property...." (Ibid.) The statute requires a plaintiff to prove, among other things, that either of two conditions is true: "(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [p] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Ibid.)

Because there was no evidence that the District had notice of the allegedly dangerous condition, the superior court correctly ruled that the District could not be liable under subdivision (b). ( § 835, subd. (b).) Brown does not challenge this ruling.

The District also moved for summary judgment under subdivision (a), reasoning

[843 P.2d 627] that there was no evidence to show that an employee of the [4 Cal.4th 825] District had created the allegedly dangerous condition. (See § 835, subd. (a).) In opposition, Brown argued that the doctrine of res ipsa loquitur applied and that, because the doctrine permits the trier of fact to presume negligence, summary judgment was inappropriate. The trial court rejected Brown's argument, granted the motion for summary judgment, and entered judgment for the District

The Court of Appeal reversed. The court held both that the doctrine of res ipsa loquitur applied under the facts of the case and that the resulting presumption of negligence established a prima facie case under section 835, subdivision (a). We granted review to consider these issues.

DISCUSSION

A. Application of the Res Ipsa Loquitur Doctrine.

The first question before us is whether the Court of Appeal correctly applied the doctrine of res ipsa loquitur to the undisputed evidence. The question has this significance: Brown, in order to recover damages from the District, must prove that "[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition." ( § 835, subd. (a).) Because there is no evidence that the lunch meat came to be on the floor through an employee's negligence, the District is entitled to summary judgment unless the doctrine of res ipsa loquitur would permit a jury to infer that fact.

The doctrine of res ipsa loquitur is too familiar to warrant a lengthy explanation. In brief, certain kinds of accidents are so likely to have been caused by the defendant's negligence that one may fairly say "the thing speaks for itself." The Latin equivalent of this phrase, "res ipsa loquitur," was first applied to a barrel of flour that rolled out of the window of the defendant's warehouse onto the plaintiff. (Byrne v. Boadle (1863) 159 Eng.Rep. 299, 300.) As later courts repeated the phrase, it evolved into the name of a rule for determining whether circumstantial evidence of negligence is sufficient. The procedural and evidentiary consequences that follow from the conclusion that an accident "speaks for itself" vary from jurisdiction to jurisdiction.

In California, the doctrine of res ipsa loquitur is defined by statute as "a presumption affecting the burden of producing evidence." (Evid.Code, § 646, subd. (b).) The presumption arises when the evidence satisfies three conditions: " '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an [4 Cal.4th 826] agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' " (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, 154 P.2d 687, quoting Prosser, Torts, p. 295.) A presumption affecting the burden of producing evidence "require[s] the trier of fact to assume the existence of the presumed fact" unless the defendant introduces evidence to the contrary. (Evid.Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in this context, is that "a proximate cause of the occurrence was some negligent conduct on the part of the defendant...." (Id., § 646, subd. (c)(1).) If the defendant introduces "evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence," the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. (Id., § 646, subd. (c); see also id., § 604.)

Experience teaches that slips and falls are not so likely to be the result of negligence as to justify a presumption to that effect. As Prosser and Keeton explain, "there are many accidents which, as a matter of common knowledge, occur frequently enough without anyone's fault.... [A]n ordinary slip and fall ... will not in [itself] justify the conclusion that negligence is the most likely explanation; and to such events res ipsa loquitur does not apply." (Prosser & Keeton, Torts (5th ed.

[843 P.2d 628] 1984) § 39, p. 246.) This is true even when the fall is associated with a slippery object, because objects all too often appear on floors without sufficient explanation. For this reason, "something slippery on the floor affords no res ipsa case against the owner of the premises, unless it is shown to have been there long enough so that he should have discovered and removed it." (Id., at pp. 255-256.)

This common wisdom is reflected in a legion of cases from many jurisdictions declaring as a general rule that res ipsa loquitur does not apply to slip and fall cases. ² The analysis in Oldenburg v. Sears, Roebuck & Co., supra, 152 Cal.App.2d 733, 314 P.2d 33, in which the plaintiff slipped on a piece of [4 Cal.4th 827] chalk, is typical: "The burden is on the plaintiff to prove every essential fact on which she relies [citation]. This burden is not met merely by proof that plaintiff invitee stepped on something while on invitor's premises and thereby was caused to fall and receive injuries, for '[n]o inference of negligence arises based simply upon proof of a fall upon the owner's floor. The doctrine of res ipsa loquitur is not applicable to such cases.' [Citations]" (Id., at p. 741, 314 P.2d 33.)

While we need not go so far as to say that res ipsa loquitur can never apply to a slip and fall, the evidence in this case fittingly illustrates why such an occurrence ordinarily does not "speak for itself." The lunch meat that apparently caused the accident went undetected until Brown fell; afterward, it was found stuck to the sole of his shoe. To be sure, the lunch meat might have been dropped by an employee, but it might also have been dropped by a visitor, tracked in from the outside or from Brown's own van, transported by an animal, or fallen from an object carried down the hall, even from one of the computers that Brown was delivering. Some of these explanations...