Lightbourn v. Del Mar

• Decision Date: 21 April 2016
• Docket Number: B263926
• Parties: WENDY LIGHTBOURN, Plaintiff and Appellant, v. CASA DEL MAR et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

WENDY LIGHTBOURN, Plaintiff and Appellant, v. CASA DEL MAR et al., Defendants and Respondents.

B263926

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

April 21, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC511081)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. Raphael, Judge. Affirmed.

DeWitt Algorri & Algorri, William N. McMillan, Carolyn L. Tan and Ernest P. Algorri for Plaintiff and Appellant.

Pollard Mavredakis Cranert Crawford and Paul C. Kwong for Defendants and Respondents.

Appellant Wendy Lightbourn brought suit against respondents Neptune's Walk LLC, doing business as Casa Del Mar, and the Edward Thomas Hospitality Corporation, owners of the Casa Del Mar Hotel in Santa Monica, for injuries that occurred on the premises of the hotel. The trial court granted respondent's motion for summary judgment, finding no causation. Appellant contends the trial court erred in finding that respondents negated that element of her claim, and that it abused its discretion in accepting the opinion of respondent's expert on the subject, while giving no credence to that of appellant's expert. Finding no legal error or abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Appellant's Complaint and Deposition

Appellant allegedly sustained personal injuries after slipping and falling on a seven-step marble staircase at the Casa Del Mar Hotel in December 2012.¹ Appellant contended respondents "negligently owned, maintained, cleaned, controlled, possessed, managed, designed, constructed, supervised, and operated" the Hotel and its fixtures, such that they were "in a defective and dangerous condition, with no warning given . . . ."

At her deposition, appellant testified that she was descending the staircase, at the time of the incident. She was wearing pumps she described as having three-inch heels, excluding the platform portion of the shoe. She stated that immediately before she slipped, she noticed a passing family and commented about them to her husband, who was walking behind her. Asked where she was looking at the time of the fall, appellant answered she did not know, that she "may have" turned tolook at her husband, but that turning to look behind her was not something she would normally do while walking down stairs. Appellant testified that her foot "slid[] on the stair[s]," moving "to the side," away from the banister, which was on her right. She said her foot did not go forward.

B. Respondents' Motion for Summary Judgment

Respondents moved for summary judgment. Although the complaint was not specific about the nature of the alleged defect in the subject staircase, respondents' counsel asserted that he had been informed by appellant's counsel that the claim was based on the failure of the staircase to conform to the applicable building code regarding variations in the tread depth of the individual steps.²

In support of their motion, respondents presented the declaration of safety engineer Taryn Johnson. Johnson's curriculum vitae included her 1981 bachelor of science degree in industrial engineering/management and masters of science degree in safety engineering. Her professional background included "slip/trip and fall analysis" and "human factors analysis," as well as construction safety and building code compliance. Johnson stated she had "inspected and evaluated thousands of stairways and the applicable building codes," and had "evaluated the mechanics of human gait while ascending and descending stairways." Johnson expressed the opinion that "[l]oss of balance due to the tread depth of steps does not cause the foot to slide to the left or to the right. [¶] . . . If [appellant] had lost her balance due to the tread depth, her foot would have rolled over the tread nosing, giving her the sensation that her foot slipped in a forward direction." She further opined: "The slide to the left indicates an offloading of body weight or theimproper placement of the foot on the tread surface. This was likely caused by instability of the estimated 4-inch high heel and turning to speak to her husband." Johnson explained that her opinion about the cause of appellant's slip and ensuing injury was based on the following factual assumptions, formed from reading appellant's deposition: (1) appellant was wearing pump style shoes, with a four inch heel "when adding the platform height"; (2) immediately before she slipped, appellant was looking at a passing family and commenting about them to her husband; and (3) appellant's left foot slipped away from the banister, to the left.

C. Appellant's Opposition

In her opposition, appellant did not dispute that her claims were based on the contention that the tread depth of the steps of the staircase failed to conform to the applicable building code. She did not controvert her deposition testimony that her left foot "didn't go forward. It [slid] to the side[,] [¶] . . . away from the banister." Nor did she add any further information about her fall. She disputed that the height of the heels she was wearing was four inches when added to the shoe's platform, stating that although she had testified her heels were three inches, there was no evidence in the record about the height of the platform. She also disputed that there was any evidence establishing she was looking at her husband when she fell.

Appellant objected to the opinions expressed by respondents' expert concerning the type of fall expected from a variance in tread depth, and the likely cause of her foot sliding to the left. She contended Johnson expressed improper opinions, and that her opinions lacked foundation and were the result of speculation. She further contended respondents' expert was unqualified to renderan opinion concerning the conclusions to be drawn from appellant's foot sliding to the left as she was not an expert in biomechanics.³

In her opposition, appellant presented evidence that the staircase at issue had seven steps. The tread depth on the fourth step was 11-1/4 inches, one inch deeper than the two steps above it and the one below it, and 1-1/4 inch deeper than the first step's tread. The bottom stair was also 11-1/4 inches.⁴ Appellant also presented the declaration of Ivan Insua, a licensed general contractor and architect, knowledgeable about the Uniform Building Code (UBC). According to Insua, the UBC provides that "[t]he greatest tread depth within any flight of stairs shall not exceed the smallest by more than 3/8 inch" when "measured horizontally between the vertical planes of the foremost projection of adjacent treads and at a right angle to the tread's leading edge," and that good design principles required that the design of facilities used by the public "be simple and intuitive," and that their use be "easy to understand" and "consistent with user expectations and intuition." As there was a 1-1/4 inch difference between the top step's tread and the tread of the fourth and bottom steps, the staircase at issue "exceed[ed] the allowable variation between the smallest and longest by 3[-]1/3 times." According to Insua, the staircase "represent[ed] a violation of applicable building code(s) and [was] unsafe for the use, safety and welfare of the general public." Insua's declaration concluded: "In my professional opinion as an architect and general contractor licensed in the State of California, the cause of the injury was directly a result ofthe unsafe condition [of the staircase]. [Appellant] lost her balance due to the extreme variance in the tread depth."

D. Reply

In their reply, respondents objected to Insua's declaration, contending he "offers no theories or facts to support his contention that the alleged code violations caused or contributed to the subject accident. He merely alleges violations and then states that the violations caused the subject accident without providing a basis for such a conclusion."

E. Trial Court's Rulings

The trial court sustained respondents' objection to Insua's declaration, explaining that his opinion was "not supported by reasoned explanation." Specifically, "Mr. Insua does not explain the relationship between the tread depth variation and why or how [appellant] would lose her balance as a result. . . . He does not opine as to why tread depth variation requires a minimum variation from a safety standpoint." Moreover, the court stated it was disinclined to credit Insua's opinion because he was "an architect only[,] . . . not a safety engineer."

The court overruled some of appellant's objections to Johnson's declaration, sustaining others. In particular, it overruled her objections to Johnson's opinion that "[l]oss of balance due to the tread depth of a step does not cause the foot to slide to the left or to the right"; "[t]he slide to the left indicates an offloading of body weight or the improper placement of the foot on the tread surface"; and "[i]f [appellant] had lost her balance due to the tread depth, her foot would have rolled over the tread nosing, giving her the sensation that her foot slipped in a forward direction." The court sustained appellant's objections to Johnson's opinion that "[appellant] likely turned toward [her husband] when she spoke to him just beforeshe slipped" and "[t]his [appellant's slip] was likely caused by instability of the estimated 4-inch high heel and turning to speak to her husband." With respect to the objection that Johnson lacked the necessary qualifications, the court noted that appellant's own proffered expert had no expertise in biomechanics, and, unlike respondents' expert, had provided no reasoning to support his opinion...