Opinion
G055924
10-16-2019
NANCY MARTINEZ, Plaintiff and Appellant, v. NORTHGATE GONZALEZ, LLC, Defendant and Respondent.
Raymond Ghermezian and Bahman Mehdizadeh for Plaintiff and Appellant. Wesierski & Zurek, Brent Gerome and Lynne Rasmussen for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00803293) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed. Raymond Ghermezian and Bahman Mehdizadeh for Plaintiff and Appellant. Wesierski & Zurek, Brent Gerome and Lynne Rasmussen for Defendant and Respondent.
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Nancy Martinez sued Northgate Gonzalez, LLC, alleging liability for a dangerous condition of property, after she was injured when she slipped on a puddle of unknown origin near the meat counter in one of Northgate's grocery stores. Martinez contends the trial court erred by instructing the jury—contrary to the opinion of her expert witness, Brad Avrit—that "[a] retail store owner is not negligent for failing to use slip resistant flooring" and that "[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself." We find no error and affirm the judgment.
Martinez argues that Northgate's choice of flooring and whether it satisfied its duty to exercise reasonable care to keep its premises reasonably safe raised issues of fact, and that Avrit's testimony provided the jury with sufficient evidence to find in her favor on them. We disagree.
Contrary to Martinez's contention, Avrit's testimony reflected that Northgate's choice of flooring complied with the existing standard of reasonable safety; the testimony provided no evidentiary basis for the jury to conclude otherwise. Avrit testified that the flooring—which he agreed was safe and slip-resistant when dry—was consistent with the flooring choices made by other grocery store owners. Avrit made no claim there were any special circumstances in Northgate's store that would subject its customers to a greater risk of liquid spills than would be expected in other stores, and thus might require Northgate to take additional precautions to ensure reasonable flooring safety.
Rather than opining that Northgate's flooring choice fell below the current standard of care in the industry, Avrit testified that in his opinion all grocery store owners should be subjected to a new and different standard. He opined that because slip-resistant flooring was effective in preventing liquid slip and fall accidents, all grocery store owners should be required to use it, and any store which did not have it was, by definition, "unsafe." He acknowledged there were "literally tens of thousands of retail markets in California alone that don't meet that [standard]," but argued that "they're taking a risk" by not using slip-resistant flooring; "if somebody then falls because they chose to save money on the flooring, then they have to pay that claim."
By opining that slip-resistant flooring should be required in all grocery stores, regardless of their individual circumstances, Avrit was in effect advocating for the imposition of a new legal duty, rather than suggesting Northgate's conduct had fallen below the existing standard of care for reasons particular to this case. The standard of care posited by Avrit is inconsistent with that imposed by our Supreme Court. The trial court therefore correctly refused to instruct the jury in accordance with this theory.
FACTS
While walking from the meat counter to the seafood counter at a Northgate grocery store in Santa Ana, Martinez slipped on a puddle of clear liquid. Adrian Mota, the store's meat manager, was standing nearby and caught Martinez as she fell to one knee.
Both the origin of the spilled liquid and its duration on the floor are unknown. Northgate's janitor testified that he makes regular rounds of the store, completing one every thirty minutes, to check for spills, debris or other dangerous conditions, and cleans up any problems that he finds. He testified other employees are also instructed that if they see any spills on the floor, they must either clean them up or call the janitor on duty.
Mota was "aware that sometimes customers go to the produce department, take produce items, don't bag them, which causes water to spill in the meat department."
Although Mota had been standing in the area for some time prior to Martinez's fall, handing out numbers to customers who wanted service at the meat counter, he did not see the puddle; had he seen it, he would have cleaned it up. In the moments leading up to the accident, Mota's attention had been focused on another meat department employee's improper use of a saw, rather than on the condition of the floor.
Martinez filed suit against Northgate in August of 2015, alleging a single cause of action for damages based on negligence and premises liability. Although the allegations of the complaint are terse, Martinez contended that Northgate's negligence had caused her fall in two ways: first, Northgate was negligent because it failed to install flooring that remained slip-resistant when wet, despite knowing that spills occur; and second, Northgate was negligent because it failed to reasonably inspect the flooring where Martinez fell and therefore failed to discover and clean up the spill before she slipped on it.
Martinez retained Avrit as her expert witness, to support both theories of negligence. Avrit had the floor in Northgate's market tested to determine its slip-resistance. The tests revealed that the floor was slip-resistant and, therefore, it was safe, when dry. However, the floor became slippery when it was wet.
Prior to trial, Northgate filed a motion in limine to preclude Avrit from opining about the slip-resistance of its flooring and whether its choice of this particular flooring was negligent. Northgate argued Avrit was unqualified to testify about the slip-resistance of its flooring because he had conducted no testing and had no expertise in the industry; he had no knowledge about the flooring generally used in grocery stores; he had gathered no data to suggest that the flooring in Northgate's store fell below any industry or governmental standards; and his opinion about the use of slip-resistant flooring was a personal recommendation rather than a reflection of existing standards.
Martinez opposed the motion, arguing that Avrit's expertise would be demonstrated during his direct examination, stating Northgate's complaints were nothing more than a preview of its cross-examination which "goes more to the weight of the evidence than its admissibility." Counsel also claimed that Northgate's characterization of Avrit's anticipated testimony was based on hearsay, rather than his own statements. Finally, Martinez asserted that Northgate could not assail Avrit's testimony on the ground it did not reflect industry standards because Northgate itself had not designated an expert and, therefore, had no basis for claiming knowledge of industry standards.
In its reply brief, Northgate argued that Avrit's testimony about the flooring should be excluded for an additional reason, i.e., that it was an effort to establish liability based on Northgate's "mode of operation" (its decision to install potentially slippery floors), in lieu of proving Northgate had actual or constructive notice of the particular dangerous condition (the puddle) that had caused Martinez to fall, an effort that had already been rejected under California law. (See, Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472 (Moore).)
At the hearing on the motion in limine, Northgate's counsel focused his argument on similarities between this case and the Moore case. The trial court denied the motion without significant comment, other than pointing out that "notice and slip resistance [are] not the same thing."
At trial, Avrit testified that in the past 25 years, he had investigated "dozens" of slip and fall accidents in Northgate's 40 stores, and "several hundreds, probably more than a thousand different cases" in retail stores both inside and outside California. He claimed that "the no. 1 cause of accidental injury or death in a store is from a slip-and-fall event," which is "the most common type of accident that they have."
Avrit failed to quantify the number of slip and fall accidents that occur in grocery stores—either overall or on a per-store basis—over any given period of time, or to determine how likely such incidents were to cause significant injury when they did occur. He acknowledged he had no data about how many spills "get[] on the floor, where, [or] with what frequency, in any store." Avrit had no knowledge as to "the frequency of falls or foreign substances on the floor in front of the meat department" in any Northgate store, including the one where Martinez fell.
Avrit described the testing that his associate had conducted to determine the slip resistance of the vinyl flooring in Northgate's store. As a result of that testing, Avrit concluded that Northgate's flooring was "safe" when it was dry. However, when the floor became wet, it fell below the level of slip-resistance that Avrit deemed safe. He did not claim the floor's slipperiness when it was wet was caused by anything Northgate had done to it, or any lack of maintenance. Rather, it was a feature of the flooring itself.
Avrit then explained that a well-known flooring manufacturer makes a floor tile similar to the one used in Northgate's store, which has a textured surface that maintains slip-resistance even when wet. He reported the cost of the slip-resistant tile is roughly $1.10 per square foot installed, as compared to a cost of about 40 cents per square foot for the flooring used in Northgate's store. According to Avrit, Northgate was aware that such slip-resistant flooring existed, and it was using that flooring in select areas of some stores, and as the entire flooring in other stores.
Avrit opined that if that slip-resistant flooring had been used by Northgate in its Santa Ana store, Martinez would not have slipped and fallen. Further, he opined that "from a risk management standpoint, . . . the cost of using a proper floor rather than relying solely on hoping that an employee will see a spill before a customer encounters it, is really minimal," and "if you can avoid just one accident, you can redo the floor in the entire store many times over." Thus, "it doesn't make sense to not change the floor, particularly in the high risk-areas, where the manufacturers of the tile that supply both types of tile recommend the slip-resistant tile."
Avrit acknowledged that Northgate invests in training to prevent accidents at the store where Martinez fell, and that they conduct regular inspections of the premises, using a "Gleason" system, to look for spills, debris or other dangerous conditions, but he opined that "they're not investing [their resources] wisely, because they can—they have an engineering control that can eliminate this type of a fall and they're not utilizing that."
A "Gleason" system is a program designed to document the regular inspections of store premises, to ensure they are free of dangerous conditions, including spills and debris. It includes the installation of buttons around the store, usually at the end of each aisle, which are activated each time an employee inspects that area. The recommended frequency of inspections is every 30 minutes, which was the routine followed by the janitor in Northgate's store. Avrit testified that the Northgate store's records reflected that it utilized its Gleason system regularly, with 28 inspection buttons throughout the store.
Avrit also testified that the use of slip-resistant floors would not be a substitute for a store owner's obligation to conduct regular inspections of the premises. He stated that although regular inspections "do[n't] matter as it relates to a liquid-spill slip and fall," which is "preventable," periodic inspections are still required to deal with situations in which "somebody drops a banana peel or a box falls off a shelf."
When asked if the use of slip-resistant flooring was "the standard of care," Avrit responded, "that's what should be used." At another point, Avrit stated that the standard of care requiring a store owner to make the premises "reasonably safe for the expected use" meant that the owner was required to "make the store as safe as possible." In his opinion that standard of care mandated storewide slip-resistant flooring because a store owner "can make [the store] reasonably safe if they follow the standard using slip-resistant floors in their store. If they choose not to, then they're taking a risk. And if [a customer] then falls because [the store owner] chose to save some money on the flooring, then they have to pay that claim."
Under cross-examination, Avrit agreed that the use of slip-resistant flooring in grocery stores was not required by any regulation or law, and it was also not an established practice in the industry. Some stores use it—at least in certain areas—while others do not. Avrit claimed he knew of "entire chains of stores that use slip-resistant flooring throughout their entire sales floor," although he didn't name them. He also acknowledged that several large chains, including Kroger, Ralphs, and Northgate use it in some stores, but not others. Food 4 Less does not use slip-resistant flooring, while Walmart uses it in the grocery area of its stores, but not other areas. According to Avrit, there were many retail stores, including grocery stores, "that are now, over time, replacing their floors with slip-resistant flooring throughout the entire store, rather than just in sections of the store . . . ."
When asked how prevalent the use of slip-resistant flooring was in stores within a five-mile radius, Avrit said he did not know. He claimed instead that the number of stores that are currently using slip-resistant flooring was "not relevant as to whether or not it's reasonable to prevent accidents that are preventable by using . . . a different type of floor." He conceded there were "literally tens of thousands of retail markets in California alone that don't meet" the safety standard he was advocating, but he argued that those stores were "taking a risk" and thus should be held liable if a customer falls as a consequence of a liquid spill.
As to the Northgate store where Martinez slipped and fell, Avrit stated "it's no different than other grocery stores where there's a high likelihood over time of liquid spills getting on the floor. If you know that, then you know what an appropriate floor surface would be for that store."
Although the bulk of Avrit's testimony focused on the contention that Northgate's choice of flooring was negligent, he also supported Martinez's contention that Mota, Northgate's meat manager, was negligent for failing to inspect the floor in the moments before Martinez slipped and fell.
Avrit faulted Northgate for not preserving a longer clip of the surveillance camera footage depicting Martinez's accident. He also criticized Northgate for not using its Gleason system in a way that documented whatever dangerous conditions were encountered during inspections. Avrit did not explain how either of those failings might have contributed to Martinez's accident.
After the close of evidence, Northgate renewed its effort to preclude a finding of liability based on Avrit's theory that any grocery store owner that fails to use slip-resistant flooring is negligent. Specifically, Northgate proposed a special jury instruction stating that "[a] retail store owner is not negligent for failing to use slip resistant flooring" and that "[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself."
In support of its request for the instruction, Northgate again cited the Moore case, arguing that Martinez's attempt to establish liability based on the floor itself was an improper attempt to establish liability without proving Northgate had constructive notice of the puddle she slipped on. Northgate also challenged the substance of Avrit's testimony, stating that "Avrit said we're negligent, just like all store owners. His testimony was, everybody who doesn't have a non-skid floor is negligent . . . if they don't have a non-skid floor. [¶] That was his testimony. That was allowed. And that's wrong. So the law is completely opposite of that."
The court then acknowledged it might have earlier misconstrued Avrit's testimony, noting it had been thinking of "the slip resistance of the floor" as something distinct from the floor itself. The court asked if Martinez's counsel agreed that Avrit's objection was to "the floor substance, not the stuff that's on it," and Martinez's counsel confirmed that was the case, that "just having that floor is an act of negligence." Again, the court sought to clarify the plaintiff's theory: "Your argument on that is that they did not properly maintain the floor?" (Italics added.) Martinez's counsel responded, "[t]hey had the wrong floor." (Italics added.)
Ultimately, the court rejected Martinez's theory that the floor itself created a dangerous condition, stating "it's not the flooring, it's the water." The court then stated to Martinez's counsel: "I assume you're going to argue that the floor—that the store placed water or water accumulated in an area under observation by [store employees] within the last minutes and that because it was not cleaned up, that [Martinez] slipped on that and fell and injured herself. [¶] That part, I have no problem with. None. But to say that the store is negligent simply because they did not have a certain type of flooring, . . . I'm inclined to agree with [Northgate], so I am precluding you from arguing that to the jury."
When Martinez's counsel inquired whether "hypothetically, in my closing, I say . . . there were other options available, other flooring available that the store could have used, that would have prevented this accident even with liquid on it," the court cut him off, noting the argument would be "kind of duty of care backwards."
The court then instructed the jury that "[a] retail store owner is not negligent for failing to use slip resistant flooring," and that "[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself." The court also instructed the jury on a store owner's duty to exercise ordinary care by making reasonable inspections of the premises to discover any dangerous conditions that exist, and then either remedying such conditions or protecting patrons from them.
DISCUSSION
1. Duty of Store Owners to Make Their Premises Reasonably Safe
"[A] plaintiff bringing an action for premises liability based on a negligence theory must plead and prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages." (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)
The duty of care imposed on store owners is "well established in California." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) "[A]lthough a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe." (Ibid.) What constitutes reasonable care is inherently situational and will depend on the circumstances of each case. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1050 ['"as a general proposition one "is required to exercise the care that a person of ordinary prudence would exercise under the circumstances." [Citations.] Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary"'].)
Where the negligence of a store owner or employee directly causes a dangerous condition, the owner will be held liable for any resulting injuries without regard to whether there is evidence the owner had notice of it. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806 (Hatfield) ["Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, . . . knowledge thereof is imputed to him"]; Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 386 [jewelry store owner liable for spill caused by employee, without regard to whether it was aware the spill existed].)
However, the owner's duty of care also extends to dangerous conditions on the premises "which are not due to the negligence of the owner," such as those caused "by natural wear and tear, or third persons, or acts of God or by other causes." (Hatfield, supra, 18 Cal.2d at p. 806; See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447 (Bridgman).) In such cases, the owner's liability turns on whether it has made reasonable efforts to discover and remedy those dangerous conditions. "[T]o impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises." (Hatfield, supra, 18 Cal.2d at p. 806; Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206 ["the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability"].) Thus, the store owner's "negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it." (Hatfield, supra, 18 Cal.2d at p. 806.)
As explained by our Supreme Court in Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205, "[a] store owner exercises ordinary care [to discover defective or dangerous conditions] by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved." "If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, 'the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise' and creating potentially hazardous conditions."' (Ibid.) The owner's constructive notice of a dangerous condition can be inferred from its failure to conduct reasonable inspections. (Id. at p. 1212.)
Once it is established that the owner "knows of, or by the exercise of reasonable care could discover" the dangerous condition caused by a third party, he "is under a duty to exercise ordinary care either to make the condition reasonably safe for [patrons'] use or to give a warning adequate to enable them to avoid the harm." (Bridgman, supra, 53 Cal.2d at p. 446.)
2. Claim of Negligence Based on Flooring
In this case, Martinez argued that Northgate was liable for her injuries in two ways: first, Northgate's choice of flooring in the store where she fell was negligent; and, second, Northgate was negligent in failing to reasonably inspect the floor and discover the spilled liquid before she slipped on it. The jury found against her on the latter claim, and she does not challenge that finding on appeal.
Instead, Martinez contends the trial court erred by refusing to let the jury decide the negligent flooring issue because, in her view, Avrit's testimony was sufficient to support a finding that Northgate's choice of flooring breached its duty to make its premises reasonably safe for customers. She also claims the court erroneously relied on Moore as a basis for precluding her negligent flooring claim, arguing the case is inapplicable.
Although we are not convinced the trial court actually relied on Moore in making its ruling, we agree the case is inapplicable to Martinez's negligent flooring claim.
Northgate relied heavily on Moore in arguing to the trial court that Martinez's negligent flooring claim was contrary to law, and it continues that reliance on appeal. However, our review of comments by the trial court suggests its ruling was primarily grounded on its rejection of Martinez's contention that the floor itself was inherently dangerous.
In Moore, the plaintiff sought to hold a store owner liable for injuries she suffered after slipping on a french fry dropped by a third party (presumably another patron.) But rather than proving the owner had actual or constructive knowledge of the particular dangerous condition caused by the third party (i.e., the existence of the specific french fry she slipped on), the plaintiff in Moore claimed that because the store incorporated a fast food restaurant within its premises, it could "reasonably anticipate that such a dangerous condition would regularly arise." (Moore, supra, 111 Cal.App.4th at p. 475.) Thus, the plaintiff claimed the store could be held liable for resulting injuries without "having either actual or constructive knowledge of the particular spill." (Id. at p. 476.)
The Moore court rejected that theory, explaining that "under current California law, a store owner's choice of a particular 'mode of operation' does not eliminate a slip-and-fall plaintiff's burden of proving the owner had knowledge of the dangerous condition that caused the accident." (Moore, supra, 111 Cal.App.4th at p. 479.) Further, the court reasoned "it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries, i.e., they would be insurers of the safety of their patrons. For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding. However, this is not to say that a store owner's business choices do not impact the negligence analysis. If the store owner's practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions." (Ibid.)
We have no quibble with Moore's reasoning. But because the case turns on the requirement that a store owner have actual or constructive notice of a dangerous condition, it has no application in situations where the dangerous condition is allegedly caused by the store owner's own negligence, or that of its employees. As we have already explained, in such cases, knowledge of the dangerous condition is "imputed" to the store owner. (Hatfield, supra, 18 Cal.2d at p. 806; Getchell v. Rogers Jewelry, supra, 203 Cal.App.4th at p. 385.)
Thus, to the extent Martinez is asserting that Northgate's own negligence caused a dangerous condition, she would not be required to separately establish Northgate had knowledge of that condition to establish liability.
Our determination that Moore is inapplicable does not assist Martinez in this appeal because we also reject her assertion that Avrit's testimony supported a finding that Northgate's flooring choice was negligent. Avrit's testimony reflected that Northgate's choice of flooring complied with the industry's existing standard of care and provided no legal basis for the jury to conclude otherwise.
Specifically, Avrit testified that Northgate's flooring—which he agreed was safe and slip-resistant when dry—was consistent with the flooring choices made by many other grocery store owners. While he contended that flooring which remained slip-resistant even when wet would be the better choice from a "risk management" standpoint, he acknowledged there were "literally tens of thousands of retail markets in California alone" that did not use it, including several large grocery chains. Consequently, Avrit's testimony did not support the conclusion that Northgate's flooring choice fell below the industry standard of care as to what "a reasonably prudent [store owner] under like circumstances" would install. (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.)
Avrit made no claim there were any special circumstances in Northgate's store that would subject its customers to a greater risk of liquid spills than would be encountered in other stores. Such testimony might require Northgate to take additional precautions, beyond what other grocery stores were doing, to ensure reasonable flooring safety. But this record contains no such evidence.
Martinez cites Moore for the proposition that "[i]f the store owner's practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions." (Moore, supra, 111 Cal.App.4th at p. 479.) Her argument fails because she cites no evidence that Northgate did anything to create an elevated risk that a dangerous condition would exist in its store, and thus that it would be obligated to increase precautions.
Instead, Martinez cites only Northgate's failure to increase its precautions—i.e., to install slipresistant flooring in the area where she fell—as the evidence creating the higher risk of a dangerous condition. Specifically, she contends "the jury here should have been permitted to consider [Northgate's] business choice [to install] slipresistant measures in certain areas of the subject store and in its other stores [and it's] failure to install slipresistant flooring at the site of Ms. Martinez's slip and fall" as evidence that it did not engage in ordinary care.
This argument is flawed, however, because Northgate's installation of slipresistant flooring in other areas of the store, or in other stores, did nothing to "create a higher risk that dangerous conditions will exist" at the site where Martinez fell.
Rather than opining that Northgate's flooring choice fell below the current industry standard of care, Avrit's claim was that all grocery store owners should be subjected to a higher standard—one which would obligate them to eliminate any risk that a customer might ever slip on a liquid spill. Avrit opined that because liquid spills were inevitable in grocery stores, the only way to make a store reasonably safe was to install flooring that remained slip-resistant even when wet, and that any store which did not have it was, by definition, "unsafe."
This testimony does not reflect the current state of the law. The inevitability of liquid spills in grocery stores is not a new phenomenon. Such spills occur with some regularity. That is why there is a well-established duty of care in California that requires store owners to conduct reasonable inspections of their premises and to remedy or remove any hazards they find. When the store owner does so in a manner commensurate with the relevant circumstances, it has fulfilled its obligation to maintain premises that are "reasonably safe" with respect to such hazards. Avrit cannot persuasively point to that very same risk as a justification for changing the standard of care.
By suggesting that slip-resistant flooring should be required in all grocery stores, regardless of their individual circumstances, Avrit was advocating for the imposition of a new and different legal duty, rather than suggesting Northgate's conduct in this case had fallen below the existing standard of care. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629, 632 ["the duty analysis is categorical, not case-specific," whereas "[w]hat constitutes reasonable care will vary with the circumstances of each case"].)
Both "the existence and scope of a defendant's duty is an issue of law, to be decided by a court, not a jury." (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) As such, issues of duty are not a proper subject of expert testimony, and the trial court here was correct in rejecting it. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 ["There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law"].)
Given the substance of Avrit's testimony on the subject of negligent flooring, we find no error in the trial court's decision to, in effect, instruct the jury to disregard it.
3. Denial of a Fair Trial
Finally, Martinez suggests she was denied a fair trial because the court initially rejected Northgate's motion to exclude Avrit's opinion that its flooring choice was negligent, but later concluded, after Avrit testified, that the opinion could not be relied upon to establish liability. She contends this operated unfairly because after the court ruled on the motion in limine, her counsel emphasized Avrit's flooring opinions in his opening statement to the jury.
We agree the timing was awkward. We nonetheless conclude the insult was to efficiency, not fairness. Martinez does not contend the trial court erred in denying the motion in limine, and we note its ruling was in accordance with her opposition in which she argued that the court should not preclude expert testimony before hearing it.
But once the court did hear Avrit's testimony, its inconsistency with the applicable legal standards became apparent. Once the evidence had closed, the court's obligation was to instruct the jury properly regarding the legal standards applicable to Martinez's case. That obligation cannot be altered by the trial court's earlier rulings, which are not ultimately binding. (Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 183.) The doctrine of law of the case does not apply to trial court rulings. (Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152, 1165, fn. 4.)
Finally, to the extent Martinez complains that Northgate's counsel took unfair advantage of the court's jury instruction on the flooring issue, and argued improperly to the jury that it should consequently disregard Avrit's opinions—plural—rather than merely his single opinion regarding Northgate's choice of the flooring, the contention is waived. Martinez does not contend she objected to the improper argument, and when such an error can be easily corrected in the trial court, it cannot be raised for the first time on appeal. (People v. Visciotti (1992) 2 Cal.4th 1, 79 ["A defendant who does not object and seek an admonition to disregard improper statements or argument by the prosecutor is deemed to have waived any error unless the harm caused could not have been corrected by appropriate instructions"].)
DISPOSITION
The judgment is affirmed. Northgate is to recover its costs on appeal.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.