IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
May 26, 2011
CAROLEE DONALDSON, PLAINTIFF AND RESPONDENT,
BLOCKBUSTER, INC., DEFENDANT AND APPELLANT.
Super. Ct. No. 06AS03447
The opinion of the court was delivered by: Mauro , J.
Donaldson v. Blockbuster CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff Carolee Donaldson filed a negligence action against defendant Blockbuster, Inc., after Donaldson slipped on a wet Blockbuster floor. Blockbuster appeals from the judgment in Donaldson's favor, contending that the trial court erred in (1) denying an instruction on comparative negligence, (2) permitting Donaldson to call Blockbuster's expert in Donaldson's case-in-chief and treat her as an adverse witness, and (3) permitting Donaldson to introduce evidence of subsequent remedial conduct by Blockbuster.
Blockbuster fails in its burden to show miscarriage of justice or prejudicial error. We will affirm the judgment.
Donaldson's accident occurred around 5:00 p.m. on Friday, December 30, 2005, during a busy holiday weekend at Blockbuster. It was damp and rainy, and the parking lot was wet. Blockbuster placed mats on the floor to catch water that customers carried in on their shoes and clothing as they entered the store. Some of the water accumulated at the end of the mats where the walking surface transitioned onto a tile floor.
Donaldson entered the store and walked across a temporary mat. When Donaldson reached the end of the floor mat and stepped onto the tile floor, she slipped and fell backward. She put her hand out behind her to break her fall, and she fell on her hand. As Donaldson fell, or right after she fell, she observed water on the floor. Donaldson suffered a serious wrist fracture commonly incurred when falling onto an outstretched wrist.
The evidence at trial indicated that Donaldson did not do anything out of the ordinary as she entered the store; she did not hurry and she was not eating, drinking, or speaking on a cell phone. She was wearing the same shoes that she wore without incident while out shopping earlier in the day, and she was carrying a small backpack-type purse. She did not physically bump into anyone and no one bumped into her to knock her off her path.
After Donaldson fell, two Blockbuster employees, Jean Sullivan and the manager Michael Kjaer, came over to her, and Sullivan used paper towels to wipe up water on the floor. According to Donaldson, Sullivan stated "she was sorry, . . . she should have gotten to that sooner," but at trial Sullivan absolutely denied making such a statement.
Thomas and Sheila Inks entered the store several minutes before Donaldson. Sheila Inks slipped as she entered "because it was real wet going into the store." She grabbed onto her husband to keep herself from falling. Thomas Inks also found the floor quite slippery even though he was wearing New Balance athletic shoes.
Mr. Inks was in line to check out a rental when he saw Donaldson, who was an acquaintance, come through the door. When asked if he observed anything unusual in Donaldson's movements, he replied, "No. She was walking in." Mr. and Mrs. Inks saw Donaldson suddenly drop out of sight behind the counter where the video return box was located. They went to see if she needed help, and Donaldson told them she had slipped. She was on the floor on the transition between the floor mat and the tile. Blockbuster employees "were scrambling . . . with paper towels to clean things up."
Neither Mr. nor Mrs. Inks observed any "wet floor" warning signs. However, according to a Blockbuster employee, James Bertrand, the wet floor signs were positioned at the entrance and exit doors.
Donaldson's expert, Charles Turnbow, had extensive qualifications regarding the standards and practices of premises management, and the causes and mechanisms of falls. He opined that Blockbuster failed to meet the standard of care in protecting its customers. Water from incoming customers would likely be carried to the end of the floor mats, creating a wet slippery floor. The risk of slipping was increased by the act of walking over surfaces with such a disparity in traction; that is, walking from the mat onto the wet tile floor. Absent the water, the floor would not have created a slipping hazard.
In Turnbow's opinion, Blockbuster's placement of the "wet floor" signs was too far from the location of the wet floor, and a reasonable customer would not expect the floor to be wet where Donaldson fell. Furthermore, Blockbuster failed to conduct adequate inspections of the floor and had it done so, it would have discovered the slipping hazard. Blockbuster's safety protocols indicated it was aware of the dangers of wet floors on rainy days.
The mats on the floor did not constitute a "trip" hazard and the mechanics of Donaldson's fall were inconsistent with tripping. Donaldson's shoes, which were made of leather uppers with a closed cell foam sole, were appropriate for a rainy day. Indeed, Turnbow did not see any evidence of any conduct by Donaldson that caused her fall.
The jury found that Blockbuster was negligent, and awarded Donaldson $406,137.04 in damages.
I Blockbuster contends the trial court should have given a jury instruction on comparative negligence.*fn1
Upon request, a party is entitled to nonargumentative and correct instructions on every theory advanced by that party if the theory is supported by substantial evidence. (Soule v. General Motors Corp (1994) 8 Cal.4th 548, 572 (Soule).) The issue of comparative negligence must be presented to the jury when it is raised as a defense and there is "'"some evidence of a substantial character"'" to support it. (Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254.) Thus, as the appellant, Blockbuster has the burden of establishing there was evidence of a substantial character of Donaldson's negligence. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [the trial court's judgment is presumed correct and it is the appellant's burden to affirmatively demonstrate error]; accord, Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8.)
According to Blockbuster, Donaldson's negligence is established by the fact that "plaintiff entered the Blockbuster store on a rainy day," "[i]t was raining at the time of plaintiff's accident," "it is logical to assume that a reasonable person would expect some water would track into the store and be deposited on the store floor," Blockbuster posted a "Wet Floor" sign in the entryway, other people knew that water was on the floor during the day, Donaldson acknowledged that she stepped in water, and Donaldson "made no claim" that she took any "special precautions" in stepping from the mat to the tile floor. These asserted facts, without more, do not constitute evidence of a "substantial character" that Donaldson was negligent. At the same time, Donaldson presented substantial evidence at trial that she was not negligent.
Blockbuster discusses Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, but that case does not support Blockbuster's argument. In Scott, plaintiff Phameline Scott slipped and fell in defendant Alpha Beta's grocery store on a rainy day. The jury found Alpha Beta 60 percent negligent and plaintiff 40 percent negligent. On appeal, the Court of Appeal resolved all conflicts in the evidence in favor of the judgment and indulged in all reasonable inferences to uphold the verdict. (Id. at pp. 306, 310.) Among other things, evidence was presented at trial that Ms. Scott had a "trick knee" and that her knee may have given out on her, causing her to fall. (Id. at p. 310.) There was also evidence that she wore pink furry house slippers into the store on a rainy day, and that she might be expected to know that the slippers would remain wet when she reached the end of the floor mat. (Ibid.)
Unlike Scott, in the instant case there was no evidence that Donaldson had a physical condition that might cause her to fall, or that she wore inappropriate footwear. There was no basis to impose a higher duty of care on Donaldson and no substantial evidence that she was negligent. Hence, the comparative negligence instruction was not warranted.
Furthermore, Blockbuster does not meet its appellate burden of demonstrating that the alleged error was prejudicial. (Soule, supra, 8 Cal.4th at p. 580.) Blockbuster cites Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, pages 548-551, for the proposition that the refusal of the instruction was prejudicial, but Hasson applied an "inherent prejudice" standard that was subsequently overruled in Soule, supra, 8 Cal.4th at page 580. The California Supreme Court held "there is no rule of automatic reversal or 'inherent' prejudice applicable to any category of civil instructional error, whether of commission or omission." (Ibid.) The Supreme Court adopted the "miscarriage of justice" standard (Cal. Const., art. VI, § 13), indicating that "[c]ontrary implications in prior decisions . . . are disapproved and overruled." (Soule, supra, 8 Cal.4th at p. 580.)
"The reviewing court should consider not only the nature of the error, 'including its natural and probable effect on a party's ability to place his full case before the jury,' but the likelihood of actual prejudice as reflected in the individual trial record, taking into account '(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled.' [Citation.]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983; Soule, supra, 8 Cal.4th at pp. 580-581.) Blockbuster did not provide us with sufficient information regarding these factors. Under the circumstances, Blockbuster has not established that the trial court's denial of the contributory negligence instruction was prejudicial error.
II Next Blockbuster contends the court erred in permitting Donaldson to call Blockbuster's expert, Dr. Laura Liptai, in Donaldson's case-in-chief pursuant to Code of Civil Procedure section 2034.310, subdivision (a), and to treat her as an adverse witness under Evidence Code section 776. The first statute permits a party to call an expert witness designated by another party if the expert was deposed. (Code Civ. Proc., § 2034.310, subd. (a).) The second statute allows a party to treat a witness as an adverse one if the party is "identified with" the opposing party. Blockbuster asserts it was prejudiced by the alleged error because Donaldson's premature examination of Liptai permitted plaintiff to attack Liptai's credibility before she was presented as a defense witness, and this "limit[ed] the effectiveness of the defense expert by presenting her in a negative light before she had an opportunity to present her opinions."
Once again, Blockbuster fails to meet its burden on appeal. Blockbuster must not only identify error, but also demonstrate resulting prejudice by spelling out, with reference to the facts of the particular case, exactly how the error caused a miscarriage of justice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) The reviewing court need not examine the entire record to determine whether an error caused such a miscarriage of justice unless the appellant has fulfilled his or her duty to tender a proper prejudice argument. (Id. at p. 106.) In other words, it is Blockbuster's burden to provide the factual details necessary to establish its contentions on appeal.
Here, Blockbuster's appellate briefs do not discuss the contents of Liptai's testimony, which makes it impossible to assess the prejudicial effect of the alleged error. Blockbuster does not challenge the substance of Turnbow's damaging expert opinion testimony, and does not demonstrate any conflict between his testimony and that provided by Liptai. Moreover, Blockbuster does not adequately explain how it is reasonably probable that a more favorable verdict would have been reached if Liptai's credibility had been attacked later, rather than sooner. Even assuming the court erred, Blockbuster has failed to establish the error was prejudicial.
Under the circumstances, Blockbuster's challenge to the trial court ruling fails.
III Blockbuster's last appellate contention is that the trial court erred in permitting Donaldson to introduce subsequent remedial conduct by Blockbuster in violation of Evidence Code section 1151, which provides: "When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event."
During trial, Blockbuster's attorney asked Blockbuster employee Jean Sullivan if she told Donaldson "words to the effect of I'm sorry, I should have gotten to this sooner." Sullivan replied, "That's absolutely impossible." According to Sullivan, if she had seen water on the floor, "it would have been dealt with immediately, no hesitation."
Donaldson's attorney cross-examined Sullivan regarding her practice of cleaning up spills and asked whether mops were ever used to clean up water. Sullivan replied that it "would have to be an enormous amount of water" for a mop to be used, and added she had never used a mop at Blockbuster. Sullivan also reiterated that she did not recall telling Donaldson she should have cleaned up the water sooner, stating "that wouldn't have came out of -- absolutely not."
During proceedings outside of the presence of the jury, Donaldson's attorney sought to introduce a photo and a portion of the surveillance video depicting Sullivan mopping the floor a short time after the accident. The court ruled the evidence was admissible to impeach Sullivan's credibility because she claimed she had never used a mop, and also claimed she never told Donaldson that she should have cleaned up the water earlier.
When counsel showed Sullivan the photo, she admitted it was her but she still did not recall ever using a mop "even though I'm looking at myself with a mop in my hand." According to Sullivan, if the photo was taken on the same night of the accident, then "maybe because of the situation somebody had me mop the floor."
Thereafter, the court permitted counsel to play a portion of the video showing Sullivan mopping the floor. The court gave a limiting instruction advising the jury they would be seeing "a snippet of a video with respect to Ms. Sullivan," and that "[t]he evidence of Ms. Sullivan using a mop is admitted for the limited purpose of showing that she used a mop while employed by Blockbuster. You may not consider this evidence to determine if Blockbuster was negligent in connection with this incident."
Relying on Sanchez v. Bagues and Sons Mortuaries (1969) 271 Cal.App.2d 188 (Sanchez), Blockbuster maintains that the trial court erred in admitting the aforementioned evidence for impeachment purposes. Sanchez is inapposite. There, the plaintiff, who slipped and fell on steps in the defendant's premises, claimed the abrasive strips on the stairs were worn. Plaintiff's counsel called defendant's manager, Manuel Bagues, to testify as an adverse witness under Evidence Code section 776 and asked him if he thought the steps were slippery on the date of the accident. Bagues stated there was non-skid tape on the steps and that they were not slippery. Thereafter, counsel sought to introduce evidence that someone had placed new abrasive strips on the stairs after the accident. Counsel stated the only reason he asked Bagues whether or not in his opinion the condition was safe at the time of the accident was to bring in the pictures of the new condition of the stairs to impeach his testimony. (Id. at p. 191.)
The Court of Appeal upheld the trial court's determination that this was not admissible evidence for impeachment, stating, "It is apparent that counsel's trial tactic was a deliberate and calculated attempt to circumvent the exclusionary rule [of Evidence Code, section 1151] and the policy which prompted its establishment. Manifestly, the only real purpose counsel had in mind in seeking to introduce the disputed evidence was to induce the jury to infer negligence on the part of defendant. This does not mean that evidence of subsequent precautions can never be used to impeach a witness called to testify as an adverse witness under section 776 of the Evidence Code. Such evidence is admissible in a proper case where a sufficient foundation for its use is laid." (Sanchez, supra, 271 Cal.App.2d at p. 191.) A sufficient foundation required that the person, who was testifying about the safety of the premises, was responsible for or involved in the subsequent remedial safety measures. (Id. at pp. 191-192.) Counsel failed to lay the necessary foundation because there was no evidence that Bagues had anything to do with installing or ordering the installation of new abrasive tape. Thus, the fact new tape was installed did not impeach Bague's statement that he thought the stairs were not slippery. (Ibid.)
Here, Sullivan, the very person who testified she never used a mop at Blockbuster and that it would require an enormous amount of water before a mop was required, was impeached with evidence of her mopping the floor a short time after the accident. This was appropriate impeachment. (Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 615.) If Sullivan was not credible in one part of her testimony (i.e., never using a mop), it is a permissible inference that Sullivan's credibility might be suspect in other aspects of her testimony (i.e., that she did not tell Donaldson she should have gotten to the wet floor sooner). (Evid. Code, § 780; CACI No. 107.) Moreover, the trial court gave an appropriate limiting instruction, which we presume the jury followed. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 598-599.)
The trial court did not err in admitting the evidence, because it was not offered to prove negligence, but rather for impeachment.
The judgment is affirmed.
We concur: RAYE, P. J. BUTZ , J.