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Howe v. Seven Forty Two Co.

November 5, 2010


APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Reversed. (Los Angeles County Super. Ct. No. GC041578).

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


In this case we hold that although the presumption of negligence established by Evidence Code section 646 (res ipsa loquitur) disappears upon the introduction of evidence tending to rebut the presumed fact, the plaintiff is still entitled to rely on the logic of the underlying common law inference of negligence if the evidence supports it, as it does in this case.

This negligence lawsuit arose from injuries suffered by appellant Michael Howe when he fell off of a counter stool at a restaurant operated by respondent IHOP.*fn1 The trial court found no evidence that respondent had actual or constructive notice of a defect in the stool, and granted respondent's motion for summary judgment. Appellant argues the trial court erred in failing to consider the res ipsa loquitur doctrine as a separate basis for respondent's liability. We reverse the judgment.


On June 26, 2008, appellant Michael Howe visited respondent's IHOP restaurant in Alhambra. When he sat down on a counter stool and leaned against the back, the chair fell off the base, causing him to fall to the ground. No other physical condition of the premises contributed to the fall.

There were seven counter stools at the restaurant, each attached to a metal base which fitted into a riser bolted to the floor. Each metal base was attached to the wood seat by three wood screws. Of the three screws attached to the seat, the subject of this complaint, two broke approximately one-half inch from the head, and one broke about one-fourth inch below the head. Appellant had no knowledge or information as to what caused the screws to break. When appellant turned the stool in order to sit down, he did not notice anything wrong with the stool and felt no looseness. Appellant did not know whether the screws failed before he placed his body on the seat, and he observed nothing about the screws which indicated long-term failure.

According to its managers, respondent conducted regular inspections of the restaurant which included looking at the bottom of the stools. Only the heads of the screws were visible from the bottom of the stools. No evidence was submitted that the inspection involved more than a visual look at the bottom of the stools. Prior to the accident, there had been no previous reported incident of a counter stool seat separating from the metal base. Appellant had visited the restaurant the week before the incident. He did not observe any problems with the seat while other patrons used it.

Appellant's complaint included causes of action for premises liability and general negligence. Respondent moved for summary judgment, presenting undisputed evidence that it had conducted regular inspections and that the stools had been used on a regular basis without any previous reported instance of a stool base breaking off and falling to the ground. At the hearing on the summary judgment motion, appellant claimed that respondent's "inspection program is unreasonable," arguing that the facts supported an inference of negligence under the doctrine of res ipsa loquitur. This, in turn, raised a triable issue of fact sufficient to defeat a motion for summary judgment.

The trial court granted the summary judgment motion, finding no triable issue of material fact as to respondent's negligence. Judgment was entered and appellant filed this timely appeal.


"[A] motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit." (Habit Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must demonstrate that there is no triable issue of fact, either by showing that the cause of action has no merit or that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that there are issues of triable fact. To do that, the plaintiff must "set forth the specific facts showing that a triable issue of material fact exists" and "may not rely upon the mere allegations or denials" of its pleadings. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) Our review of the trial court's ruling granting summary judgment is de novo. (Id. at p. 860.)

In his complaint, appellant alleges that respondent was negligent and therefore is liable for injuries suffered when he fell off the counter stool on respondent's premises. To establish liability on a negligence theory appellant must prove duty, breach, causation and damages. (Rest.3d Torts, § 6; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426.) While an owner is not an insurer of safety to those on its premises, an owner owes them "a duty to exercise reasonable care in keeping the premises reasonably safe." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) A store owner exercises reasonable care when it regularly inspects the premises and the required level of care corresponds to the risks involved. (Ibid.) In its motion for summary judgment respondent presented evidence that it conducted regular inspections of the stools and had no indication of problems with the seat of the stool separating from its base.

In opposition, appellant contended that the doctrine of res ipsa loquitur applied to demonstrate the presence of negligence and raised a triable issue of fact. "The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible." (Di Mare v. ...

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