Downes v. Belmont Park Entm't

• Decision Date: 29 December 2021
• Docket Number: D077851
• Court: California Court of Appeals Court of Appeals
• Parties: ROBERT DOWNES, Plaintiff and Appellant, v. BELMONT PARK ENTERTAINMENT, LLC, Defendant and Respondent.

ROBERT DOWNES, Plaintiff and Appellant,
v.
BELMONT PARK ENTERTAINMENT, LLC, Defendant and Respondent.

D077851

California Court of Appeals, Fourth District, First Division

December 29, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Reversed.

Niddrie Addams Fuller Singh and John S. Addams for Plaintiff and Appellant.

Bremer Whyte Brown &O'Meara, Vik Nagpal, and John Paul Salem for Defendant and Respondent.

HALLER, J.

Defendant Belmont Park Entertainment, LLC (BPE), owns, operates, and maintains the Belmont Amusement park in Mission Beach, which includes the Beach House Grill restaurant and bar (BHG). Plaintiff Robert Downes sued BPE for negligence and premises liability after he fell backwards off a barstool onto a sand-covered patio at the BHG bar. Downes

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alleged the bar flooring-a 3-foot-wide hard surface walkway between the bar and an 8-inch-deep sand patio-created a dangerous, hidden condition, giving rise to BPE's duty to remedy and/or warn of the unsafe condition.

BPE moved for summary judgment pursuant to Code of Civil Procedure section 437c^[1] on various grounds including the "open and obvious doctrine." Pursuant to this doctrine, a possessor of property has no duty to remedy or, as relevant to this case, warn of a dangerous condition that is open and obvious because the condition itself serves as notice of the danger. (See, e.g., Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980 (Zuniga).) Although it is a question of fact whether an unsafe condition is "open and obvious," the court here found the doctrine applied as a matter law and granted summary judgment for BPE.^[2] Alternatively, the court found Downes's failure to timely respond to BPE's separate statement provided an independent, discretionary ground to grant the motion. The court subsequently awarded BPE costs of $17, 359.34.

As we explain, we conclude Downes proffered sufficient evidence to establish a triable issue of material fact whether the condition of the flooring presented a danger that was open and obvious or one that required a warning due to the hidden danger. We also conclude the court erred in granting

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summary judgment based on Downes's failure to timely respond to BPE's separate statement. Based on our decision, we further conclude the award of costs to BPE must be reversed.^[3]

I. FACTUAL AND PROCEDURAL OVERVIEW

A. BHG

BHG is a 30, 000 square-foot outdoor venue featuring tiki bars, fire pits, cabanas, and tropical palms, with capacity to accommodate over 800 seated guests. BHG is located along the busy Mission Beach boardwalk, just behind Belmont Park. This area is a popular tourist attraction particularly during the summer months, when BHG is open seven days a week from about noon to sundown.

In 2007, BHG was remodeled to include a" 'boardwalk-like' walking surface surrounded by sand areas to create the unique atmosphere of an oceanfront restaurant and bar." The boardwalk-like hard walking surface (the walkway) around the bar is formed with "3/4 [inch] 'Trex' plastic wood planks screwed to supports set in the sand." The walkway "extends 36 [inches] out from the counter support wall"; the wall also supports a 9 1/2-inch bar counter overhang. The clear space between the edge of the bar counter to the end of the walkway is therefore 26 1/2 inches (i.e., 36 minus 9 1/2). Although the "pale cream" sand is nearly "flush" with the top level of the dark, maroon colored walkway, the sand is actually 8-inches deeper than the hard surface it abuts.

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The footprint of the wooden barstools placed on the walkway is 18 1/2 inches by 16 1/8 inches. The seats of the barstools are 17 1/2 inches by 9 1/8 inches, and the barstools are 29 7/8 inches tall.

B. The Accident

On June 1, 2016, Downes and family members ate lunch at a restaurant in Belmont Park. At about 1:00 p.m., Downes, his brother Patrick Downes and their wives entered BHG through the back entrance, walked through sand, and sat at the tiki bar. In opposing summary judgment, Downes described himself as a large patron, and submitted medical records showing he had been diagnosed with "obesity."

Downes sat on a barstool near the corner of the bar. When he first sat down, he pulled the barstool out about a foot and a half from the bar counter, but otherwise did not move while seated at the bar.^[4] Over about a four-hour period, he consumed at least three margaritas.

After being at the bar with his brother for about four hours, Downes "shifted" his barstool by "using his hands to push himself off the bar while [his] feet were on the barstool." Patrick saw one of the legs of his brother's barstool slip off the walkway into the sand, causing his brother to fall backwards and hit his head on the ground, rendering him temporarily unconscious. The walkway where Downes sat on the barstool was dry and it was light outside at the time of the accident. Paramedics and other emergency personnel stabilized Downes before he was transported by ambulance to the emergency room.

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As a result of the fall, Downes underwent spinal fusion surgery in January 2017. He underwent another spinal surgery in January 2019 to alleviate pressure and possible failure of adjacent discs, and to replace "hardware" from the first surgery.

From 2007 to the date of Downes's accident, no one "complained regarding the offsets between the walking surfaces and sand located around the venue." Nor had there been any reports of injuries during this time period from "the bars, barstools, offsets between the walking surfaces and sand, or sand areas located around the venue."

C. The Experts

In support of its summary judgment motion, BPE submitted the declaration of Tom Blatchley, a licensed architect. Blatchley performed measurements of the bar area, including the walkway and the sand area around the bar. Based on these measurements, Blatchley opined that there were "adequate clearances" "in the construction of the area in question"; that the size of the barstool appeared to fit "easily" within the width of the walkway; and that a patron would be too far from the bar counter to sit comfortably at the bar if the hind legs of the barstool on which he or she sat were near the edge of the walkway.

In reaching his opinions, Blatchley relied on a diagram ostensibly published by the American Institute of Architects that he determined reflected conditions "similar to those claimed in this case."^[5] The diagram depicts a human figure sitting on a barstool. The front legs of the barstool

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are 8 inches from the bar base, and the back legs are 24 inches from that base, leaving 12 inches from the back legs to what in this case would be the transition between the walkway and the sand. Based on his inspection and analysis, Blatchley opined the BHG bar was fully compliant with "all applicable California Building Code [(CBC)] sections and requirements of the [Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA)]."

In response to BPE's assertion that the "offset between the sand and the wooden area serves as a visual indicator of the change in elevation" and therefore, was "open and obvious," Downes submitted the declaration of Brad Avrit, a licensed engineer.

Avrit opined the walkway and its transition to sand created a dangerous condition. He maintained that the barstools at BHG were "designed and intended to be used on flat, stable, firm, planar surfaces" such as the walkway and not on sand that was eight inches deep. He added, "If the legs from a chair [i.e., barstool] in the bar area enters the sand, two things will occur. First, the chair will become unstable due to the changes in elevation between the sand level and the wood surface level. Second, the leg (or legs) from the chair will sink into the sand causing it to be stuck in place. The second issue is significant as a chair entering the sand area will likely be due to a patron pushing their chair back away from the bar to get up. If this sinking and sticking occurs, then the motion of the chair will change from backwards sliding, to fixed rotation before a patron is aware of what happened."

Like Blatchley, Avrit also took multiple measurements of the bar area, including the walkway and the barstool's footprint. Avrit measured the walkway and found it was 44 inches wide at its base, or eight inches wider than Blatchley. However, even with the alleged wider walkway, Avrit opined

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the bar flooring created a dangerous condition because the barstool took up about 50 percent "of the available walkway space," and, accounting for a reasonable amount of legroom of about 20 inches for a larger patron such as Downes, the hindlegs of a patron's barstool would be "mere inches from the edge of the wooden walkway." (Italics added.)

Using a "measuring tool," Avrit found it sunk about 1 3/4 inches into the sand due to its "smaller surface area." Based on the ease in which the tool sank into the sand, Avrit opined the combination of the weight of a person sitting on a barstool "and the low surface area of [its] leg[s]" would cause the barstool to sink "several inches" into the sand if its leg or legs left the walkway, thus creating a tripping hazard.

Avrit further opined the bar flooring violated both the CBC and the ADA. He also maintained BPE had a duty to remedy the danger created by the flooring and, as particularly relevant in the instant case, to warn patrons who sat on barstools at the bar of the dangerous condition "immediately behind them."

D. Summary Judgment

In its moving papers, BPE argued Downes's negligence cause of action failed "because: 1) Plaintiff cannot establish Defendant owed a duty to prevent him from leaning back while sitting at a barstool; [and] 2) even if a duty is owed, the undisputed facts show Defendant's conduct was not a substantial factor of...