Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG06267932
SIMONS, J.
Plaintiffs Yery Cool (Mrs. Cool) and Patrick Cool (Mr. Cool) (collectively, appellants) appeal from the summary judgment entered against them and in favor of defendant Safeway, Inc. (Safeway), on appellants’ personal injury action against Safeway. Appellants contend triable issues of material fact exist as to whether Safeway had actual or constructive notice of the dangerous condition on its property. We disagree and affirm.
Background
At around 8:20 a.m. or 8:30 a.m. on the morning of March 24, 2006, Mrs. Cool arrived at a Safeway store in San Leandro. At the delicatessen department, she picked up a premade sandwich and several other items. She then left the delicatessen department and, carrying these items in her hands, walked toward the back of the store to get yogurt from the dairy department. On her way to the back of the store, Mrs. Cool noticed a male employee restocking packaged meat. She did not notice any substance on the floor in the area where the male employee was working. Mrs. Cool reached the back of the store and turned right, down the back main aisle, where she noticed a female employee ahead of her restocking products in the dairy department. Again, Mrs. Cool did not see liquid or any other substance on the floor in the area where the female employee was working. As Mrs. Cool started to walk down the back main aisle, she saw other employees working in the aisles to her right.
Mrs. Cool walked down the back aisle toward the yogurt and, about five or six feet from the area where the female employee was working, Mrs. Cool slipped and fell. Based on her best estimate, she fell at around 8:40 a.m. or 8:45 a.m. She did not see liquid or any other substance on the floor in the area where she fell, either before or after her fall. After she fell, Mrs. Cool noticed that her pants were wet on the left buttock and thigh. At the hospital, Mrs. Cool’s husband, Mr. Cool, also felt moisture on her pants.
Robert Burns, another customer at Safeway, witnessed Mrs. Cool’s fall. Just before she fell, he saw her feet moving back and forth as if she were on ice. He did not notice anything shiny or wet on the floor near where she fell. After her fall, a paramedic attending to Mrs. Cool pointed out a small piece of meat lying on the floor nearby. Mrs. Cool stated she did not know where the piece of meat came from, how long it had been there, or whether it came from the sandwich she was carrying.
At the time of Mrs. Cool’s fall, Safeway procedures required a courtesy clerk to inspect and sweep the floors each hour. The courtesy clerk was required to “punch” a sweep log immediately after completing each sweep by sliding an employee badge through the time clock. By punching the sweep log, the courtesy clerk confirmed that the floors had been inspected and they were clean and free of debris, liquid and other hazards. On the day of Mrs. Cool’s fall, employee Jordon Groggs (Groggs) was the courtesy clerk assigned to sweep the floors between 8:00 a.m. and 9:00 a.m. Groggs’s practice was to punch the sweep log only after completing his sweep in the area identified. On March 24, 2006, Groggs punched the sweep log for the grocery area at 8:33 a.m. In addition to these hourly documented inspections, all Safeway employees were trained to clean up any hazards they observed on the floor.
Entries on the sweep log are recorded in military time, with 100 units to the hour. Thus, the sweep log entry of 8:56 translates to 8:33 a.m.
On May 3, 2006, appellants filed suit against Safeway for negligence, premises liability, and loss of consortium, alleging that Mrs. Cool slipped and fell on liquid on the floor of the San Leandro Safeway store and shattered her elbow. On January 3, 2007, Safeway moved for summary judgment on the ground that appellants could not establish that Safeway had actual or constructive notice of the alleged dangerous condition. For purposes of the summary judgment motion, Safeway conceded that Mrs. Cool had fallen in liquid. However, Safeway argued that appellants could not establish actual or constructive notice because appellants had no evidence of how long the liquid had been on the floor or how it got there, and the undisputed evidence showed Safeway had conducted a routine inspection and sweep of the grocery area at 8:33 a.m., seven to 12 minutes before Mrs. Cool’s fall.
In opposition, appellants contended that triable issues of fact existed as to whether Safeway employees either created the dangerous condition, or knew or should have known about it. Appellants pointed to the evidence that a number of employees were restocking products at the time of Mrs. Cool’s fall, including the female employee restocking products five or six feet from the location where Mrs. Cool fell, and that all Safeway employees were required to clean up any hazards they observed on the floor. Appellants argued that this evidence raised reasonable inferences that either (1) Safeway employees created the dangerous condition while restocking, or (2) Safeway employees working nearby should have noticed the liquid on the floor but failed to do so.
On March 20, 2007, after hearing argument on the motion, the trial court granted summary judgment in favor of Safeway. The court concluded that appellants could not establish that Safeway had actual or constructive knowledge of the dangerous condition. The court found it was undisputed that Groggs had swept the floor seven to 12 minutes before Mrs. Cool’s fall, and appellants had submitted no evidence from which it could be reasonably inferred that the liquid had been on the floor for a sufficient period of time to charge Safeway with constructive knowledge of its existence. The court further concluded that the evidence did not create a reasonable inference that Safeway employees had caused the dangerous condition.
Judgment in favor of Safeway was entered on April 6, 2007, and appellants filed a timely notice of appeal.
Discussion
I. Standard of Review
We review the court’s summary judgment ruling de novo to determine whether the moving party has met its burden of persuasion that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.) When the defendant is the moving party, as here, it must show either (1) that the plaintiff cannot establish one or more elements of a cause of action, or (2) that there is a complete defense. If the defendant meets its burden of production, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid.; § 437c, subds. (c), (o) & (p).) The plaintiff cannot rely on “mere allegations or denials,” but must “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2).) “All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment.” (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)
II. Actual or Constructive Notice of the Dangerous Condition
Appellants contend the court erred in granting summary judgment to Safeway, because the evidence that a Safeway employee last inspected the area seven to 12 minutes before Mrs. Cool’s fall raises a triable issue of fact as to whether Safeway had constructive notice of the dangerous condition. Appellants argue that whether the liquid was on the floor long enough for a reasonably prudent person to discover it is a question of fact that cannot be resolved on summary judgment. We disagree.
On appeal, appellants do not contend that there are triable issues of fact as to whether Safeway employees created the dangerous condition. Therefore, we do not address this issue.
In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages. (Ortega v. KMart Corp. (2001) 26 Cal.4th 1200, 1205 (“Ortega”).) A store owner owes its patrons a duty to use reasonable care in keeping the premises reasonably safe. A store owner exercises reasonable care by making reasonable inspections of the portions of the premises open to customers. (Ibid.) “Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Id. at p. 1206.) Where the plaintiff relies on the theory that the store owner failed to correct a dangerous condition, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. The plaintiff need not demonstrate actual knowledge or produce direct evidence of the length of time a dangerous condition existed. Instead, the plaintiff can demonstrate the owner’s constructive knowledge of the defect by circumstantial evidence. (Id. at pp. 1206-1207, 1210.)
Where the plaintiff has no evidence of how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it.” (Ortega, supra, 26 Cal.4th at p. 1203.) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time, speculation and conjecture are insufficient to carry the plaintiff’s burden. (Id. at pp. 1205-1206.)
Whether a dangerous condition existed long enough for a reasonably prudent person to have discovered it is ordinarily a question of fact for the jury. (Ortega, supra, 26 Cal.4th at p. 1207.) However, if the evidence does not support a reasonable inference that the hazard existed long enough to be discovered in the exercise of reasonable care, the issue of notice may be resolved as a matter of law. (Ibid.) In Girvetz v. The Boy’s Market, Inc. (1949) 91 Cal.App.2d 827, for example, the plaintiff slipped on a banana in a grocery store. The only evidence relevant to notice was that a customer had seen the banana on the floor a minute and a half before the accident. The court affirmed judgment for the defendant notwithstanding the jury verdict for the plaintiff, holding that the evidence was insufficient to support an inference that the store owner had constructive notice. The court noted that it was “entirely possible that the banana had been on the floor for a half hour or more, but to uphold a verdict based on that possibility would be to fix liability not upon evidence, but upon surmise and conjecture,” and that to impose a duty to discover the dropped banana within a minute and a half would be a duty of “ ‘utmost’ ” rather than “ ‘ordinary’ ” care. (Id. at pp. 831-832.) Similarly, in Perez v. Ow (1962) 200 Cal.App.2d 559, the plaintiff slipped in ice cream in the parking lot outside a market. The court affirmed a judgment of nonsuit, holding that there was no evidence from which it could be inferred that the ice cream was on the ground for a sufficient period of time to charge the store owner with constructive notice. (Id. at pp. 560-563.)
Safeway has satisfied its burden of showing that appellants cannot establish that Safeway had actual or constructive notice of the dangerous condition, and appellants have failed to show a triable issue of fact as to notice. Appellants have no direct evidence of how long the liquid was on the floor. Instead, they rely on the evidence of Safeway’s inspection procedures. The evidence indicates that at the time of Mrs. Cool’s fall, Safeway procedures required hourly inspections of the store, and all Safeway employees were trained to clean up any hazards they observed on the floor. Safeway kept written records of inspections, requiring the courtesy clerk to punch a sweep log immediately after completing each required inspection. On the day of Mrs. Cool’s fall, Groggs punched the sweep log for the grocery area at 8:33 a.m., just seven to 12 minutes before Mrs. Cool’s fall. The evidence of Safeway’s inspection procedures does not suggest that Safeway was negligent, and does not raise a reasonable inference that the hazard existed long enough to be discovered and remedied. At most, this evidence indicates Safeway had a regular, documented inspection program and the liquid was on the floor for no more than seven to 12 minutes. It would be mere speculation to conclude, based on this evidence, that the liquid was on the floor for a sufficient period of time to charge Safeway with knowledge of the dangerous condition. If Safeway’s documented inspection of the area where Mrs. Cool fell just seven to 12 minutes before her accident, alone, were sufficient to raise a reasonable inference that Safeway had constructive notice of the hazard, then virtually every inspection program could raise such an inference, and plaintiffs would be relieved of their burden to prove constructive notice.
The cases relied on by appellants, in which the court permitted an inference of constructive notice based on an owner’s inadequate inspection program, are distinguishable. In Ortega, the plaintiff slipped on a puddle of milk in a KMart. The plaintiff had no direct evidence of how long the milk had been on the floor. There was evidence that KMart employees were trained to look for and clean up spills, but KMart kept no written inspection records, and the manager testified he would not have known if the aisle where the spill occurred had been inspected at any time that day. The manager stated that the milk could have been on the floor 15-30 minutes, or as much as two hours. (Ortega, supra, 26 Cal.4th at p. 1204.) Our Supreme Court affirmed a jury verdict in favor of the plaintiff, holding that KMart’s failure to conduct inspections within a reasonable time before the incident was indicative of KMart’s negligence and raised a reasonable inference that the spill existed long enough to be discovered and remedied. (Id. at p. 1211.) In contrast, Safeway conducted regular hourly inspections and kept written inspection records, and these records showed an inspection of the area where Mrs. Cool fell just seven to 12 minutes before the accident.
Similarly, in Sapp v. W.T. Grant Company (1959) 172 Cal.App.2d 89, the plaintiff fell on a spool of thread in a variety store. The store assigned a clerk to monitor each department, and required that when a clerk left her department for a coffee break, she notify neighboring clerks so they could cover her area. On the day of the plaintiff’s fall, the clerk assigned to the notions department left for her coffee break and apparently did not notify anyone of her absence; the department was unattended for 20 minutes before the plaintiff’s fall. (Id. at p. 92.) The court affirmed a jury verdict for the plaintiff, reasoning that although the plaintiff offered no evidence of how long the spool had been on the floor prior to her fall, “this latter factor loses significance when placed vis-a-vis the fact that the notions department remained unsupervised for a period of 20 minutes; for no matter what the interval of time the spool lay there it would have gone undetected during this 20-minute period.” (Id. at pp. 94.) The court concluded that it was proper for the jury to determine whether allocating 20 minutes between regular inspections was an exercise of reasonable care. (Ibid.) Unlike in Sapp, appellants offer no evidence that Safeway’s regular monitoring procedures were not followed or that the area where Mrs. Cool fell was left unattended for 20 minutes prior to the fall; instead, the evidence shows Safeway conducted a routine inspection of the area where Mrs. Cool fell seven to 12 minutes before the accident.
Additional cases relied on by appellants are likewise distinguishable. In Louie v. Hagstrom’s Food Stores, Inc. (1947) 81 Cal.App.2d 601, the plaintiff slipped on a puddle of Karo syrup in a grocery store. The evidence demonstrated that no employee had inspected the area where the plaintiff fell for 15 to 25 minutes prior to the fall. The syrup was thick and did not flow freely, and by the time plaintiff slipped it had formed a puddle a foot and a half wide. The Court of Appeal affirmed a jury verdict for plaintiff, holding that the evidence raised a reasonable inference that the syrup had been on the floor for “a substantial period of time” and the owner should have discovered it. (Id. at pp. 608-609.) In Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, the plaintiff slipped on a banana in a grocery store. The banana had small teeth marks on it as if a small child had tried to bite it; the plaintiff saw no children in the store during the 30 to 45 minutes she was in the store before the fall. There was conflicting testimony as to when the produce department had last been inspected: the employee normally in charge of the produce department testified he swept the area five to 12 minutes before the fall; the manager stated he thought that same employee had been working at the check stand for 15 to 30 minutes prior to the fall; and the plaintiff testified she had not seen any employees in the produce area for 30 to 45 minutes. The Court of Appeal reversed a judgment of nonsuit for the defendant, holding that the evidence supported a legitimate inference that the banana should have been discovered in the exercise of reasonable care. (Id. at pp. 127-128, 131.) Here, unlike in Louie and Hale, the only evidence of how long the liquid had been on the floor is the evidence of Safeway’s inspection procedures; there is no other circumstantial evidence from which to infer that the hazard had existed for a substantial period of time
III. Trial Court’s Consideration of All Relevant Evidence
Appellants also contend that the trial court erred in failing to “consider all of the evidence set forth in the papers . . .” in granting summary judgment. (Code Civ. Proc., § 437c, subd. (c).) Appellants contend the court failed to consider three “important facts” that they argue support a reasonable inference that Safeway had actual or constructive knowledge of the liquid on the floor: (1) witness testimony that before she fell, Mrs. Cool’s feet moved back and forth as if she were on ice; (2) evidence that the paramedic attending to Mrs. Cool noticed a piece of meat lying on the floor nearby; and (3) evidence that Mrs. Cool had moisture on her pants after the accident.
The court did not specifically cite this evidence in its order granting summary judgment, but there is no indication that the trial court failed to consider all the relevant evidence. Moreover, none of the evidence cited by appellants raises a triable issue of fact as to whether Safeway had actual or constructive notice of the dangerous condition. The first and third pieces of evidence cited by appellants are not relevant to how long the hazard existed, but instead relate to whether there was liquid on the floor at the time Mrs. Cool fell. As noted above, Safeway concedes, for the purposes of summary judgment, that Mrs. Cool slipped in some type of liquid. The second piece of evidence, that a paramedic pointed out a piece of meat near where Mrs. Cool fell, does not raise a reasonable inference that Safeway had constructive notice of the hazard. Appellants argue that this evidence raises a reasonable inference that the meat deposited the liquid Mrs. Cool slipped in. However, even granting this inference, there is no evidence that the meat had been on the floor long enough to charge Safeway with constructive knowledge. Mrs. Cool stated in deposition that she did not know where the piece of meat came from, how long it had been there, or whether it came from the sandwich she was carrying.
Disposition
The judgment is affirmed. Safeway is entitled to its costs on appeal.
We concur: JONES, P.J., NEEDHAM, J.