Opinion
C096426
05-26-2023
ELVIRA CISNEROS DE SILVA, Plaintiff and Appellant, v. ST. JOHN'S CATHOLIC CEMETERY et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Super. Ct. No. STK-CV-UPl-2020-0004091
BOULWARE EURIE, J.
Walking through a 140-year-old cemetery on her way to a funeral, plaintiff Elvira Cisneros De Silva was injured when a headstone struck her after someone fell onto it. Plaintiff sued the cemetery (St. John's Catholic Cemetery) and its owner (the Catholic Diocese of Stockton Cemeteries) (collectively defendant) - in this appeal - for damages, alleging negligence in inspecting and maintaining the headstone that struck her. Plaintiff took the position defendant had a duty to physically inspect the headstone.
The trial court granted defendant's motion for summary judgment, reasoning defendant had no special relationship with plaintiff giving rise to a duty of care to her, and even if defendant did owe a duty of care to plaintiff, the circumstances surrounding the injury were unforeseeable. On appeal, plaintiff argues the trial court's reasoning was flawed. As we explain below, the trial court misconstrued plaintiff's argument and analyzed the defendant's duty of care on an inapplicable theory. Furthermore, a triable issue of material fact exists as to whether it was foreseeable that the headstone would fall when someone collided with it. Thus, the trial court's bases for granting summary judgment were flawed and, accordingly, we reverse.
We requested supplemental briefing from the parties addressing whether the family that purchased the headstone that struck plaintiff had an interest in the headstone and its immediate surroundings that was akin to an easement, implicating Civil Code section 845, subdivision (a). We do not to address that issue herein.
BACKGROUND
Since its nineteenth century founding, the cemetery where plaintiff was injured has been owned and controlled by defendant and its predecessors in interest - the Roman Catholic Bishop of Stockton and the Archdiocese of San Francisco. As a "religious" cemetery, it is exempt from many of the laws governing cemeteries in the Health and Safety Code (see Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 201; Health & Saf. Code, § 8250, subd. (a)) and is not subject to the regulations and oversight of the Department of Consumer Affairs, Cemetery and Funeral Bureau, in any way material to the instant matter.
As plaintiff walked through a cemetery with family members on her way to a funeral in June 2018, a headstone struck her after a 400-pound woman, a relative of the plaintiff with a medical condition, lost her balance and fell onto it. The headstone marked the grave of a man buried in 2008. Defendant played no part in its purchase or installation, as the family that bought the headstone chose its design and materials, and selected the vendor who erected it. In the approximately 10 years following its installation, no defects in the headstone had been observed or reported.
In her complaint filed in 2020, plaintiff brought three causes of action against defendant: (1) res ipsa loquitor - a headstone would not fall "unless someone was negligent in inspecting, maintaining or repairing it"; (2) negligence - defendant had a duty to "inspect and make safe the [head]stones which they place[d] on their premises," and breached that "duty of care" to plaintiff; and (3) premises liability - defendant owned the subject premises, had "exclusive control over the maintenance of the [head]stone" that fell on plaintiff, and breached a duty to plaintiff by failing to discover that headstone was "unsafe."
During the 2021 deposition of the defendant's director of cemeteries, it was clarified that one does not buy a plot in a Catholic cemetery. One buys "a right to burial in a plot." Defendant's director explained that the duties of the cemetery's landscape maintenance employees include mowing grass, taking care of sprinklers, and looking for potential safety hazards like tree limbs hanging too low, in which case employees will remove the limb. Also, if during "normal maintenance" an employee "see[s] something that isn't correct," then they will "repair it, fix it, whatever the need is, without the charge to the family." If the problem, is "pertaining to the stone that belongs to the family," the cemetery will "take care of it" "depending on the situation"; sometimes the family "may not be visiting out there for many, many years. Others are there almost every day." For example, if a headstone is not sitting on its base properly, landscape maintenance employees will "straighten it out" and "put adhesive on it." If a granite vase has "broken off" or been "knocked over" employees will repair and reattach it.
But "if there's a significant issue with the [head]stone, like a chip on it" a family member will be contacted. Often the family member asks the cemetery," 'What do we do?' And then we'll refer them to their monument company to repair it," the cemetery director explained. "If there is a problem on the grave itself," by contrast, "like a sinking in one corner or whatever, then [the cemetery] automatically repair[s] that" as "part of . . . maintenance." The cemetery director estimated that in the previous five years, there was a total of "maybe four" toppled headstones in the four cemeteries defendant owns and operates.
In the director's opinion (based on over 25 years working for defendant), vandalism is normally the cause of toppled headstones, which generally are observed when cemetery employees arrive in the morning and see "not just one," but two or three headstones on the ground.
Offering context to questions he was about to pose to the cemetery director, plaintiff's counsel explained that during discovery between the parties he received one document responsive to defendant's assertion it was not responsible for maintenance of the headstone that struck plaintiff. Plaintiff's counsel asked the cemetery director if he saw anything in that document "evidencing or referring to who was responsible for the maintenance of the headstone." The cemetery director replied, "No."
During discovery, defendant refused - absent a "release and authorization" from the family - to provide a copy of the contract between defendant and the family that purchased the headstone that struck plaintiff. It is unclear whether plaintiff ever obtained such a release and if defendant ever provided the contract. Defendant did apparently provide "exemplar documents" the contract was based on. Relatedly, and in response to defendant's interrogatories, plaintiff asserted that a member of her family was buried in the cemetery where she was injured, and "the contract between that family member and [d]efendant[] does not contain any provisions stating that the family is in charge of the upkeep or maintenance of the plot or the headstone."
Ultimately, defendant moved for summary judgment, arguing the res ipsa loquitor cause of action failed because it was undisputed the headstone was not within its exclusive control. Addressing the negligence and premises liability causes of action together and characterizing them as "intertwined," defendant argued it did not breach its "landowner duty" to plaintiff, because it had no actual or constructive knowledge the headstone that struck plaintiff was a dangerous condition: the cemetery had "an everpresent program of inspection and . . . had the . . . headstone constituted a dangerous condition," that would have become apparent. As a dangerous condition never became apparent, "there was no duty whatsoever for [the cemetery] to take action." And, defendant asserted, the proposition that "headstones . . . by just being present" can be "deemed dangerous conditions" "defi[es] common sense" and has "no supporting statutory or decisional law."
In opposition, plaintiff argued defendant had a duty to "perform physical inspections of headstones" because headstones had fallen on its property before, and it was "foreseeable that those attending defendant's property w[ould] come into contact with headstones and touch them." "[P]hysical inspection would have revealed the headstone at issue was loose and dangerous," plaintiff maintained. And once defendant knew the headstone was loose, plaintiff continued, it could have "resecur[ed]" the headstone to its base by applying adhesive compound. A properly secured headstone would have "easily withst[ood] a bump or even a fall from a 400-pound" person. And, plaintiff asserted, there was "zero evidence that anyone other than the defendant had the duty to maintain the headstone."
The trial court granted summary judgment, citing Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (Taekwondo) for the proposition defendant had no special relationship with plaintiff giving rise to a duty of care to her. And even if defendant did owe a duty of care to plaintiff, the trial court reasoned, the facts and circumstances of the case were "an unforeseeable, independent, intervening and superseding cause" of plaintiff's injuries, requiring summary judgment under the reasoning of Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339. Plaintiff timely appealed.
DISCUSSION
A. Standard of Review
On appeal from the grant of a motion for summary judgment, we review de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. Summary judgment is proper only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of showing the plaintiff has not established, and cannot reasonably expect to establish, the elements of his or her cause of action. (Code Civ. Proc., § 437c, subd. (c); Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 253-254.)
B. Analysis
We agree with plaintiff that the trial court's reasoning was flawed. This is not a case where defendant's duty to protect plaintiff was conditioned on the existence of a special relationship between defendant and plaintiff. In this case, the question of whether it was foreseeable that the headstone would topple when someone collided with it was a disputed fact that must be resolved by the trier of fact.
1. Injury Caused by a Third Party
In Taekwondo, our Supreme Court clarified the circumstances in which a defendant may be held liable for injury caused by a third party, explaining: "A defendant cannot be held liable in negligence for harms it did not cause unless there are special circumstances - such as a special relationship to the parties - that give the defendant a special obligation to offer protection or assistance." (Taekwondo, supra, 11 Cal.5th at p. 220.) Providing context for this clarification, our Supreme Court revisited the foundational principle of the duty of reasonable care." 'The general rule' governing duty is set forth in Civil Code section 1714 (section 1714). [Citation.] First enacted in 1872, section 1714 provides: 'Everyone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person ....' (Id., subd. (a).) This statute establishes the default rule that each person has a duty 'to exercise, in his or her activities, reasonable care for the safety of others.'" (Taekwondo, supra, 11 Cal.5th at pp. 213-214.)
"This general rule . . . 'derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter.' [Citation.] That distinction has deep roots in the law," but "is not absolute." "Under some circumstances, a defendant may have an affirmative duty to protect the plaintiff from harm at the hands of a third party, even though the risk of harm is not of the defendant's own making." "In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a 'special relationship' with either the victim or the person who created the harm." (Taekwondo, supra, 11 Cal.5th at pp. 214-215.)
Some examples of a special relationship, which "puts the defendant in a unique position to protect the plaintiff from injury," are relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests. (Taekwondo, supra, 11 Cal.5th at p. 216.) In Taekwondo, our Supreme Court agreed with the appellate court that the trial court erred by dismissing claims at the demurrer stage where the plaintiff adequately alleged the defendant USA Taekwondo had a legal duty to protect her from sexual abuse by a third party, her coach. (Id. at pp. 211, 213, 222.) Here, by contrast, plaintiff's claims against defendant do not depend on the presence of any kind of special relationship, but on the general rule of reasonable care articulated by section 1714 of the Civil Code.
The trial court misunderstood plaintiff's argument, which was not that defendant was liable for the falling woman's conduct, but instead that defendant was liable for its own failure to ensure the headstone was properly secured. Plaintiff claimed defendant's duty of care as a landowner included physical inspection of headstones in the cemetery, and that defendant's breach of that duty was the proximate cause of her injury. (See Taekwondo, supra, 11 Cal.5th at p. 213 [stating elements of cause of action for negligence].) Plaintiff did not invoke the special relationship doctrine. In other words, the question of a special relationship - the "sine qua non" of which "is the defendant's control over the third party" that harms the victim (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 770-771, fn. 2) - simply is not pertinent here, because plaintiff's theory was that her injury was proximately caused by defendant's failure to physically inspect and repair the headstone, which would not have fallen over onto plaintiff absent defendant's breach of its duty. Accordingly, the trial court erred by granting summary judgment due to the absence of a special relationship.
2. Foreseeability
"The fundamental expression of the need in the law of negligence for a concept of duty and foreseeability was provided over 60 years ago in Palsgraf v. Long Island R. Co., supra, 248 N.Y. 339, and has withstood the test of time." (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103, 1135.) Sometimes, foreseeability draws the limits of one's duty to another; but in other situations, foreseeability is a factual question. (See Carrera v. Maurice J. Sopp & Son (2009) 177 Cal.App.4th 366, 378 &fn. 2 [foreseeability is a concept that" 'plays a variety of roles in tort doctrine generally; in some contexts it is a question of fact for the jury, whereas in other contexts it is part of the calculus to which a court looks in defining the boundaries of "duty"' "]; Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 508, fn. 7 ["duty is decided by the court after considering the foreseeability of the particular kind of harm," and a jury's "consideration of foreseeability" is "within the more focused, fact-specific settings of breach of duty and causation"].) Here, the order granting summary judgment indicates the trial court conflated the two situations.
To the extent the trial court ruled that a third party contributed to the headstone toppling over and striking plaintiff and therefore the defendant had no duty to prevent such an occurrence that was not foreseeable, that ruling was erroneous. A reasonably thoughtful person would take into account the possibility of such an occurrence after giving the matter some thought. (See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145-1146 [a court's task in determining duty in the context of foreseeability"' "is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed," '" as foreseeability"' "includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it"' "].) On this record, a triable issue of fact exists as to whether it was foreseeable that the headstone would topple when someone collided with it.
To the extent the trial court ruled the cause of plaintiff's injuries was unforeseeable, the trial court usurped the jury's role of deciding whether defendant breached its landowner duty by failing to physically inspect the headstone in question and, if so, whether that breach caused plaintiff's injury. (See Bigbee v. Pacific Tel. &Tel. Co. (1983) 34 Cal.3d 49, 57-58 [the question on a motion for summary judgment is the foreseeability of "the general character of the event or harm -- e.g., being struck by a car while standing in a phone booth -- not its precise nature or manner of occurrence"; and if a jury "could reasonably conclude that this risk was foreseeable," summary judgment is improper even if "the harm to plaintiff came about through the negligent or reckless acts" of a third party whose acts the jury also could conclude was foreseeable].) Here, the issue of whether it was foreseeable that (a) someone might be struck by a falling headstone in the cemetery (the general character of the event), and (b) such an event might occur after someone else lost his or her balance and fell onto the headstone raises a triable issue of material fact such that defendant is not entitled to judgment as a matter of law. (Cf. id. at p. 58 ["a jury could reasonably find that defendants should have foreseen the possibility of the very accident which actually occurred here"].) Accordingly, we reverse the trial court's grant of summary judgment.
DISPOSITION
The judgment is reversed. Plaintiff is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: RENNER, Acting P. J. EARL, J.