O'Donnell v. Feldsher, B047407

Decision Date19 February 1992
Docket NumberNo. B047407,B047407
Citation3 Cal.App.4th 843,4 Cal.Rptr.2d 732
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 3 Cal.App.4th 843, 9 Cal.App.4th 821 3 Cal.App.4th 843, 9 Cal.App.4th 821 James O'DONNELL, Plaintiff and Appellant, v. Murray FELDSHER et al., Defendants and Respondents; Southern California Gas Company, Intervener and Appellant.

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Steven J. Kleifield, Los Angeles, for plaintiff and appellant.

Nazila Y. Levy, Los Angeles, for intervener and appellant.

Burns, Ammirato, Palumbo, Milam & Baronian and Bruce Palumbo, Pasadena, for defendants and respondents.

COOPER, Associate Justice. *

Plaintiff/appellant James O'Donnell (appellant) appeals from the judgment entered upon the granting of the motion for summary judgment of defendants/respondents Murray and Marilyn Feldsher (respondents). Appellant is joined in this appeal by his employer, plaintiff in intervention Southern California Gas Company (the Gas Company). Appellant's complaint against respondents had sought damages for injuries he allegedly sustained when he slipped and fell on the wet, tiled entryway of a home owned by respondents.

As we conclude that triable issues of material fact exist, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

On August 7, 1985, appellant filed a personal injury complaint against respondents. Therein, he alleged that on September 17, 1984, he was injured on respondents' premises, located in Bradbury, as a result of the premises being negligently maintained and operated.

On December 27, 1985, respondents answered. As affirmative defenses, respondents pleaded the contributory/comparative negligence of appellant and causation by unknown third parties.

On September 26, 1989, respondents filed a motion for summary judgment or, alternatively, for summary adjudication of issues. Respondents asserted that appellant was barred from recovery by the doctrine of implied assumption of the risk.

Respondents' statement of undisputed facts and supporting documentation provided the following factual support for their position: At the time of appellant's injury, the property was owned by respondents but was leased to John and Sue Jordon; the tiled entryway was installed before respondents purchased the property; during the night prior to the incident, it had rained and appellant had seen puddles on the streets in the neighborhood; as a Southern California Gas Company employee, appellant was making a service call on the premises; he arrived about 10:00 a.m. and noticed Ms. Jordon hosing down the "parking area near the front entryway and the entryway"; appellant was told that the only access to the premises was through the front door as there were large dogs in the rear; appellant's shoes were wet and their soles had a slippery deposit from pine needles and leaves found throughout the yard, driveway and entryway; before he fell, appellant knew that the entryway was wet and was concerned about his footing; appellant successfully crossed the entryway twice before he fell; the Jordons had not hosed down the entryway after appellant entered the first time; and when appellant fell, he had been watching out for the wet spots on the tile.

In opposition, the Gas Company agreed that the facts stated by respondents were not in dispute. It asserted, however, that one material fact remained in dispute: whether appellant was aware of the risk involved in crossing the wet entryway.

In his opposition, appellant asserted that the doctrine of implied assumption of the risk had not survived Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. In any event, appellant asserted, triable issues of fact existed. He filed a response to respondents' statement of undisputed facts. He agreed that most were not in dispute; however, he asserted that although it had rained the night before, the tile was "basically dry" when he In support, appellant filed, among other things, the declaration of Charles E. Turnbow, a registered professional safety engineer, licensed in California since 1978, who had testified as an expert witness over 600 times. He declared that upon examination of the entryway, it was his opinion that the tile used in the entryway was inappropriate for areas that might be exposed to water because it did not provide adequate traction; the coefficient of friction on the surface is sufficiently low such that slipping is likely to occur on every step; it would be very difficult for a person walking on the tile to determine by visual inspection that it was more slippery than ordinary outdoor tile when wet; there was a substantial defect in the walkway surface which created a hazardous and dangerous condition to the pedestrian.

                fell;  he knew the entryway was wet and he was concerned about his footing.  However, he "lacked knowledge of just how [9 Cal.App.4th 825] slippery the tile was."   In appellant's statement of disputed facts and supporting documentation, he asserted that he "did not know that the tile on which he fell was unduly slippery when wet."
                

On November 3, 1989, the court granted the motion; however, it did so on a ground not asserted or argued by the parties. The court determined that respondents had no liability, as a matter of law, because they were non-possessory owners at the time of the incident.

The Gas Company unsuccessfully moved for reconsideration. Judgment was entered on November 15, 1989. This timely appeal followed.

STANDARD OF REVIEW

"The summary judgment procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic and should be used with caution. [Citation.] Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. [Citations.] [p] 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' [Citation.] 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' [Citation.] '... [I]ssue finding rather than issue determination is the pivot upon which the summary judgment law turns.' [Citation.]" (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

DISCUSSION

Appellant asserts reversal of the judgment is required because the court based its ruling on an issue not propounded by the moving party and not discussed by any party; triable issues of fact exist as to that issue; and, in any event, summary judgment should not have been granted on the grounds raised by respondents.

We agree. As the court reasoned in Folberg v. Clara G.R. Kinney Co. (1980) 104 Cal.App.3d 136, 140, 163 Cal.Rptr. 426: "An appellate court must sustain a summary judgment if the trial court's decision is right upon any theory of the law applicable to the case, ... regardless of the considerations which may have moved the trial court to its conclusion. [Citations.] But the basis for a summary judgment is the absence of...

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2 cases
  • O'Donnell v. Feldsher
    • United States
    • United States State Supreme Court (California)
    • November 30, 1992
    ...v. Murry FELDSHER et al., Respondents. No. S025870. Supreme Court of California, In Bank. Nov. 30, 1992. Prior report: Cal.App., 4 Cal.Rptr.2d 732. The above-entitled review is transferred to the Court of Appeal, Second Appellate District, Division Four, with directions to vacate its decisi......
  • O'Donnell v. Feldsher
    • United States
    • United States State Supreme Court (California)
    • May 14, 1992
    ...v. Murray FELDSHER et al., Respondents. No. S025870. Supreme Court of California, In Bank. May 14, 1992. Prior report: Cal.App., 4 Cal.Rptr.2d 732. Respondents' petition for review Submission of additional briefing, otherwise required by rule 29.3, California Rules of Court, is deferred pen......

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