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Tom Getchell et al v. Rogers Jewelry

February 7, 2012

TOM GETCHELL ET AL., PLAINTIFFS AND APPELLANTS,
v.
ROGERS JEWELRY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Shelleyanne W. L. Chang, Judge. (Super. Ct. No. 34-2008-0001-15689-CU-PO-GDS)

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

CERTIFIED FOR PUBLICATION

Reversed.

This is a not a typical slip and fall case. The plaintiff, a business invitee, alleges that he was injured when he slipped and fell on jewelry cleaning solution in the back room of defendant's jewelry store, which was accessible only to the plaintiff and defendant's employees. A summary judgment was entered in the defendant's favor on the ground the plaintiff failed to establish that the defendant had actual or constructive notice of the dangerous condition.

Plaintiff appeals, contending he was "not required to make any showing of notice by [defendant] because it was [defendant] and its own employees who created the dangerous condition which caused [his] injury . . . ."

This is not an ordinary slip and fall case because it turns on whether the dangerous condition was created by the negligence of an employee over whom the defendant had control. In such a case the notice doctrine applicable in dangerous condition of property cases is governed by the doctrine of respondeat superior. Since this case arises on summary judgment the dispositive question is whether on the facts tendered in the summary judgment motion there is a reasonable inference that the dangerous condition was caused by the negligence of one of defendant's employees.

Where, as here, the plaintiff produces evidence from which a reasonable inference can be drawn that the dangerous condition was created by the defendant or its employees, the defendant is charged with notice of the dangerous condition. (Oldham v. The Atchison, Topeka & Santa Fe Railway Company (1948) 85 Cal.App.2d 214, 218-219.) Accordingly, we shall conclude the trial court erred in entering summary judgment in the defendant's favor and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At all relevant times, plaintiff Tom Getchell worked as an independent contractor repairing jewelry at defendant Rogers Jewelry store in the Arden Fair Mall. He alleges that (1) he slipped in jewelry cleaning solution in the break room of defendant's store and was injured, and (2) the solution leaked onto the floor from its container or was poured onto the floor by one of defendant's employees. He sued defendant for negligence and premises liability. Getchell's wife, Diane Getchell, asserted a cause of action for loss of consortium.

Defendant moved for summary judgment on the grounds that Getchell failed to show that defendant had actual or constructive notice of the dangerous condition and that the condition was open and notorious. In support of its assertion that it lacked notice, defendant submitted the declarations of its store and office managers, both of whom represented that they did not have any notice that the cleaning solution was on the floor on the day Getchell slipped and fell or at any other time, and that there had been no reports of falls in the Arden Fair Mall store other than Getchell's.

Getchell opposed the motion. In support of his opposition, he submitted his own declaration in which he made the following representations: the cleaning solution is stored in a five gallon bucket in the employee break area. The only people who have access to the break room and who use and have access to the cleaning solution are Getchell and defendant's employees. The bucket has a rotating spigot pump. In order to use the spigot, it must be rotated over the side of the bucket. When not in use, the spigot is supposed to be positioned over the bucket. That way, if it leaks, it will drip onto the lid of the bucket instead of the floor. Whenever Getchell used the spigot, he returned it to a position above the lid. On several occasions, he observed defendant's employees use the spigot and leave it positioned over the side of the bucket such that if the spigot were to leak, it would drip onto the floor.

The accident occurred on September 13, 2006. Getchell's last day of work prior to the accident was September 11, 2006. He returned to work on the morning of September 13, 2006, entered his work area to set up his tools, and within a few minutes slipped in a pool of cleaning solution. He did not use the cleaning solution on September 13, 2006, prior to the accident. The only persons with access to the cleaning solution during this period and who could or would have used it were defendant's employees. No evidence was tendered that the bucket or spigot was in a defective condition or had leaked in the past.

Based on the evidence set forth in his declaration, Getchell argued that because defendant and its employees had exclusive control over the premises where the accident occurred as well as the bucket from which the solution was dispensed, defendant and its employees created the dangerous condition, and thus, had constructive notice of the same.

The trial court entered summary judgment in favor of defendant. It found that "although [Getchell's] hypothesis describes one possible way that cleaning solution could have gotten onto the floor, it is speculation and not evidence of how the cleaning solution got on the floor in this case. . . . Without evidence of how the cleaning solution got on the floor prior to plaintiff's slip and fall or evidence that the spigot had leaked onto the floor previously, plaintiffs cannot dispute defendant's showing that plaintiffs have no evidence that defendant had actual or constructive knowledge of a dangerous condition, that is, a pool of 'cleaning solution' on the floor of ...


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