Moore v. William Jessup Univ.

• Citation: 197 Cal.Rptr.3d 51,243 Cal.App.4th 427
• Decision Date: 28 December 2015
• Docket Number: C073433
• Court: California Court of Appeals
• Parties: Stephen MOORE, Plaintiff and Appellant, v. WILLIAM JESSUP UNIVERSITY, Defendant and Respondent.

243 Cal.App.4th 427

197 Cal.Rptr.3d 51

Stephen MOORE, Plaintiff and Appellant,

v.WILLIAM JESSUP UNIVERSITY, Defendant and Respondent.

C073433

Court of Appeal, Third District, California.

Filed December 28, 2015

Law Offices of Alan M. Laskin, Alan M. Laskin and Darren Guez for Plaintiff and Appellant.

Prout Le Vangie, Levangie Law Group, Michael J. Baytosh, Katy A. Cummings, and Michael J. Levangie, Sacramento, for Defendant and Respondent.

Mauro, J.Plaintiff Stephen Moore, a United Parcel Service (UPS) delivery driver, was injured when he lifted a box with a shipping label prepared by defendant William Jessup University (University) that inaccurately stated the weight of the box. Moore appeals from the judgment entered in favor of the University after the trial court granted summary judgment on Moore's sole cause of action for negligence. The trial court concluded the University owed Moore no legal duty of care and that the doctrine of primary assumption of risk barred Moore's action.

Moore contends the trial court erred in granting the University summary judgment because the doctrine of primary assumption of risk does not apply where the University increased the risk of injury to Moore by understating the weight of the box and failing to use highlighted tape to mark the box. Moore also claims the University owed him a duty of care under the test articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.¹

Although a defendant has no duty to protect a plaintiff from risks inherent in an activity, a defendant has a duty not to increase the risks. The evidence in this case establishes that the risk of injury from lifting heavy boxes that may be labeled with inaccurate weight information was inherent in Moore's job as a UPS delivery driver. UPS does not require customers to weigh packages before labeling them, and customers sometimes inaccurately identify the weight of packages. UPS instructs its delivery drivers on proper lifting techniques and it trains its employees to test the weight of a package before lifting it.

Courts have held that, as a matter of public policy, it is unfair to impose a duty on a defendant to prevent an injury to a plaintiff arising from the very condition or hazard the defendant retained the plaintiff to confront. The primary assumption of risk doctrine does not require a plaintiff to assume every possible risk presented in an occupation, but here, by mislabeling the package, the University did not increase the risks beyond those that were inherent in Moore's job. Accordingly, the primary assumption of risk doctrine applies and bars Moore's negligence action, and we need not address whether the University owed Moore a duty of care under the factors set forth in Rowland v. Christian. We will affirm the judgment.

BACKGROUND

Moore began working for UPS in 1989. As of January 2010, he had been a UPS delivery driver for 15 years, and he had 20 years of experience lifting and handling packages for UPS. Moore lifted heavy boxes on a daily basis as a fundamental part of his occupation as a UPS delivery driver.

UPS instructed its employees on proper lifting techniques. It trained employees to test the weight of a package before lifting it, and to not lift packages weighing more than 70 pounds. UPS employees were supposed to "roll" heavy packages onto a hand truck and "roll" the package from the hand truck into the delivery truck. A UPS delivery driver may request assistance from other UPS personnel to move a package weighing 70 or more pounds.

UPS customers were required to attach warning labels to packages weighing 70 pounds or more. But UPS customers sometimes mislabeled packages.

Moore stopped at the University to deliver a "next day air" envelope on the morning of January 29, 2010. While at the University, Moore saw 24 boxes stacked in the UPS pick up area of the University's mailroom. The boxes were all approximately the same size and shape. Each box was about the size of a photocopy-paper box. All of the boxes had UPS shipping labels attached. Moore looked at all the shipping labels on the boxes. Each label stated each box weighed 48 pounds.

Moore used a hand truck to move the boxes. Although he encountered shipping labels stating inaccurate weights at least weekly on his route, Moore relied on the weight stated on the shipping labels to determine how he would move the 24 boxes he encountered at the University that day.

Moore lifted four boxes onto his hand truck without incident. Based on his 20 years of experience, he estimated the first four boxes he lifted weighed about 48 pounds each. When he lifted the fifth box, Moore felt pain in his wrist, shoulder, and neck. Based on his 20 years of experience, Moore estimated the fifth box he lifted weighed approximately 70 to 80 pounds. If the shipping label on the fifth box had stated that the box weighed 80 pounds, Moore would have slid the box instead of lifting it and he may have asked for assistance.

Moore filed a workers' compensation claim and received all available workers' compensation benefits for his injuries. Most of his medical bills were paid by his employer's workers' compensation insurer. Workers' compensation doctors ultimately assessed Moore's condition as permanent and stable, and Moore received a cumulative disability rating of five percent.

Moore also sued the University, asserting a cause of action for negligence. The University moved for summary judgment on the ground that it did not owe a duty to protect Moore from injuries arising from lifting heavy boxes, which was an inherent risk of his employment, and the University did not increase the risk inherent in Moore's job.

Brian Lucas, manager of the University's bookstore, and Cameron Wilson, interim manager of the bookstore, submitted declarations in support of the University's summary judgment motion. Lucas and Wilson described the bookstore's practice in shipping four or more boxes of textbooks. But Lucas did not know whether any boxes UPS may have picked up from the University on January 29, 2010, were from the bookstore. The bookstore was not the only entity within the University that shipped large boxes using UPS. Lucas did not find any records of a shipment left for UPS pick up on January 29, 2010. There were no records establishing what was in the boxes Moore picked up. And Lucas did not know the weight of any box Moore picked up from the University.

Wilson was the only person employed by the bookstore in January 2010. But he did not know who packed the boxes Moore picked up from the University on January 29, 2010. He did not know how any box Moore picked up from the University on that date was prepared for shipping.²

The trial court granted the University's motion and entered judgment in favor of the University and against Moore. The trial court concluded the University owed Moore no duty of care, and the doctrine of primary assumption of risk barred Moore's action.³

STANDARD OF REVIEW

Summary judgment provides courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar ).) A defendant moving for summary judgment may demonstrate that the plaintiff's cause of action has no merit by showing that one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2) ; Aguilar, supra, 25 Cal.4th at p. 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) This showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters of which judicial notice may be taken. (Code Civ. Proc., § 437c, subd. (b)(1) ; Aguilar, supra, 25 Cal.4th at p. 855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

After the defendant meets its threshold burden, the burden shifts to the plaintiff to present evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2) ; Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The plaintiff may not simply rely on the allegations of his complaint but, instead, must set forth the specific facts showing the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to the plaintiff. (Aguilar, supra, 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If the trial court concludes the evidence or inferences raise a triable issue of material fact, it must deny the defendant's motion. (Id. at p. 856, 107 Cal.Rptr.2d 841, 24 P.3d 493.) But the trial court must grant the defendant's motion if the papers show there is no triable issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

We review an order granting summary judgment de novo. (Aguilar, supra, 25 Cal.4th at p. 860, 107 Cal.Rptr.2d 841, 24 P.3d 493.) We independently examine the record to determine whether a triable issue of material fact exists, liberally construing the evidence and resolving all doubts concerning the evidence in favor of the party opposing summary judgment. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499–500, 177 Cal.Rptr.3d 539, 333 P.3d 723 ; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its...