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Bozzi v. Nordstrom

July 13, 2010

KATYA BOZZI, PLAINTIFF AND APPELLANT,
v.
NORDSTROM, INC., ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from the judgment of the Superior Court of Los Angeles County. Cary H. Nishimoto, Judge. Affirmed. (Los Angeles County Super. Ct. No. YC056696).

The opinion of the court was delivered by: Grimes, J.

CERTIFIED FOR PUBLICATION

In this personal injury lawsuit, plaintiff Katya Bozzi appeals from the grant of summary judgment in favor of defendants Nordstrom, Inc., South Bay Center, LLC (collectively Nordstrom), and Kone, Inc. (Kone). Bozzi was riding the down escalator to the first floor of a Nordstrom department store when the escalator stopped abruptly due to a power outage that was apparently caused by a nearby traffic accident. We affirm the judgment, finding plaintiff did not show there was a triable issue of fact that defendants breached any duty of care or that the escalator was defective.

BACKGROUND

On July 14, 2006, plaintiff was shopping at the Nordstrom store at the South Bay Galleria in Redondo Beach. She was riding an escalator from the second floor down to the first after making a purchase. An electrical service interruption in the City of Redondo Beach caused a power outage in the store. The lights went out, and the escalator stopped. Plaintiff was holding onto one or both handrails, but she was injured when her left foot moved down one step on the escalator, though she did not fall. The power was out for about one minute and was then restored. The lights went on, the escalator descended to the first floor, and plaintiff walked out of the store. There were other shoppers riding the escalator with plaintiff, including her adult daughter, but no one else claimed to have been injured.

Plaintiff sued all defendants for negligence. She alleged Nordstrom was a business that invited her to shop and therefore owed a duty not to create an unreasonably dangerous condition in the store. Further, she alleged Nordstrom violated the duty to inspect and maintain the safety of the escalator and to warn of the danger of a jolt in the event of a power outage. She alleged Kone, successor to the escalator manufacturer, also violated the duty to provide a safe escalator or warn of inherent defects. The second cause of action against Nordstrom for premises liability also alleged violation of the duty to take reasonable steps to prevent reasonably foreseeable harm. The third cause of action was against Kone only, for strict product liability. Plaintiff alleged all defendants had a duty to either supply an alternate power supply or design and maintain the escalator so that it would slow to a gradual stop when the power went out.

THE SUMMARY JUDGMENT MOTIONS

Nordstrom and Kone filed separate motions for summary judgment. They argued the escalator was not defective, and plaintiff was not injured by any negligence in the design, manufacture, installation or maintenance of the escalator. Defendants contended this was one of those accidents for which no one was to blame. (See Mautino v. Sutter Hospital Assn. (1931) 211 Cal. 556, 561 [" ' "not every accident that occurs gives rise to a cause of action upon which the party injured may recover damages from someone. Thousands of accidents occur every day for which no one is liable in damages, and often no one is to blame, not even the ones who are injured" ' "].)

The summary judgment motions were supported by substantially identical declarations of Davis L. Turner, who has been employed in the elevator and escalator industry since 1962. Mr. Turner worked for Otis Elevator Company (Otis) from 1962 to 1968. After military service, he returned to Otis in 1972 and worked there until 1988. In his early years at Otis, he held positions in manufacturing and installation of elevators and escalators. He progressed to sales representative, construction superintendent, regional director of field education, product manager for escalators, and various management positions. He left Otis to hold executive positions with Mitsubishi Electronics America until he established his own company in 1996.

Through his company, Mr. Turner provides consulting services for construction projects involving elevators and escalators. He inspects elevators and escalators to advise property owners as to performance, maintenance, repair, safety, and compliance with state codes and industry standards. He is also a forensic expert who has been qualified to testify in eight states, including California, about elevator and escalator design, engineering, manufacture, installation, operation, maintenance, repair and safety. He is a member of various professional organizations involving elevator safety and a member of the American Society of Mechanical Engineers, having chaired committees on escalator and elevator standards and inspection.

Mr. Turner inspected the escalator at the Nordstrom store at South Bay Galleria in September 2008. A Kone service technician started and stopped the escalator several times while Mr. Turner was riding it. Mr. Turner found the escalator traveled at a speed and stopped at a distance that met state requirements and industry standards. In addition to inspecting the escalator, he reviewed extensive records, including plaintiff's deposition, the entire file of inspections of the escalator kept by the California Department of Industrial Relations, Division of Occupational Safety and Health (DOSH), the manufacturing blueprints, Kone's maintenance contract with Nordstrom, Kone's maintenance technician's guide, and all of Kone's records of examination, maintenance and repair of the escalator from a year before the power outage until a month afterward.

He testified the escalator was installed in the Nordstrom store in 1985. DOSH inspected the escalator before the store opened to the public and found its design, manufacture, installation, and posted warnings met all California code requirements. DOSH determined the escalator functioned properly and was safe for its intended use. The escalator design was state of the art in the escalator industry in 1985. Its design, manufacture, installation, and posted warnings met industry standards. Nordstrom contracted with Kone to maintain the escalator. The maintenance contract was the most comprehensive contract Kone offered. Kone inspected the escalator every month. DOSH inspected the escalator in 2005 and 2007 and found no problem with the way it stopped.

Mr. Turner explained an escalator's brake controls its stopping. An escalator stops the same way whether triggered by an emergency stop or by a power outage. Kone installed a new brake on the escalator six months before the power outage. Mr. Turner stated it was a superbly designed, state-of-the-art brake that met industry standards and was safe for its intended use. The brake was set to bring the escalator to a stop at a rate significantly slower than the maximum speed allowed by the California Code of Regulations.

Kone inspected the escalator less than three weeks before, and one week after, the power outage. In both inspections, the escalator worked properly, with no brake malfunction. When inspected, the escalator did not jolt while stopping. At the time of the power outage, the escalator had come to a complete stop and restarted a few seconds later. Mr. Turner explained that once the escalator stopped, it could not restart on its own. If a safety switch had been triggered by a jolting stop, the escalator could not have been turned back on with the escalator key, and Nordstrom would have had to make a trouble call to Kone. Yet no safety switch was triggered on the date of the power outage, Nordstrom did not make any ...


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