Opinion
B161189.
10-30-2003
INEZ SEPMEYER, Plaintiff and Appellant, v. RALPHS GROCERY COMPANY, Defendant and Respondent.
David E.R. Woolley for Plaintiff and Appellant. Law Offices of Kristi Weiler Dean, Stuart E. Rissman and Rebecca Davis-Stein for Defendant and Respondent.
This is a slip and fall case in which the defendants motion for summary judgment was granted. We affirm.
FACTS
In August 1999, 89-year-old Inez Sepmeyer slipped and fell while shopping at a Ralphs market in West Los Angeles. In the produce area, Sepmeyer walked around a banana display, turned, and began to walk back to the front of the display. After she took a few steps, her foot "sort of hit" the border between the vinyl tile flooring and a carpet, and she fell. There was no debris, dirt or water on the floor or carpet (Sepmeyer herself described the area as "meticulous"), but the border between the tile and the carpet — a raised edge (less than 1/8 of an inch high) known in the grocery industry as a "reducer" — was "a little rough." Ralphs employees had inspected the area earlier in the day and had not found any problem. There had been no similar accidents in the two years preceding Sepmeyers fall. None of these facts are disputed.
In August 2000, Sepmeyer sued Ralphs Grocery Company, alleging that it had "failed to provide a reasonably safe environment . . . under the circumstances," and that it had negligently maintained the produce area. Ralphs answered, conducted discovery, and then moved for summary judgment on the ground that the undisputed facts showed (at most) a trivial defect and not actionable negligence. Sepmeyer opposed the motion, and submitted a declaration from Alex Balian, an expert who opined that the "rough" reducer was not a trivial defect.
Ralphs objected to Balians declaration on the ground that his qualifications to testify about safety issues had not been established. The objection was sustained, and the motion for summary judgment was granted. Sepmeyer appeals.
DISCUSSION
Sepmeyer contends the trivial defect rule does not apply to a fall in a supermarket, and she also contends the trial court should not have excluded her experts opinion that the defect was not trivial. We address her second issue first and ultimately reject both claims of error.
I.
Balians declaration offers nothing at all about his background but states that his "curriculum vitae is attached." The one-page document attached to his declaration is in the nature of a resume and shows that he has a masters degree in business administration and that he owned and operated a chain of supermarkets for more than 20 years — but we agree with the trial court that there were no facts to establish his qualifications "to testify about dangerous conditions or mechanics," only as to the general operations of a retail store. Sepmeyers contention that the safety issue is beyond common knowledge and a proper subject for expert testimony simply misses the point, and she offers no argument or authority to suggest the trial court abused its discretion by finding that Balians qualifications were not established. We find no error. (People v. Morganti (1996) 43 Cal.App.4th 643, 656-657 [the trial court has discretion to exclude expert testimony when the experts qualifications are not established]; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
II.
Sepmeyer contends Ralphs trivial defect defense raises questions of fact and should not have been decided by summary judgment. She also claims it should not apply in this case because no prior "California case . . . has ever applied it to conditions within a supermarket or store." We disagree.
In Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, the plaintiff (a 72-year-old woman) tripped on a raised edge on the walkway leading to Big Boys parking lot (the edge was no more than 3/4 of an inch higher than the adjoining section). (Id. at pp. 395-396.) As an affirmative defense, Big Boy claimed it was at most a trivial defect, then (as here) successfully moved for summary judgment on that ground. Division Two of our court affirmed, finding that reasonable minds could not differ and that the defect was trivial as a matter of law. (Id. at p. 397.) The court rejected the plaintiffs claim that the defense is available only to a government entity, and flatly rejected the assertion that the landowners liability always raises questions of fact. (Id. at p. 398.)
Ursino held that "persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. [¶] The rule which permits a court to determine `triviality as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. . . . [A] landowner is not an insurer of the safety of its users." (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d at pp. 398-399.) Thus, while it is true, as Sepmeyer contends, that the trivial defect doctrine originated in the public entity context, it has for many years been applied to private landowners — and no case has suggested the doctrine is more or less restricted in either context.
Sepmeyer contends the Ursino rule applies only to sidewalks and not to stores, but offers no relevant authority for such a distinction. Her citation to Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1338, footnote 17, adds nothing — for the simple reason that the trivial defect argument raised in the trial court in that case was not pursued on that appeal. (Ibid.; see also Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704 [affirming summary judgment because reasonable minds could not differ as to whether the design of a staircase posed at most a minor or trivial risk of harm]; Graves v. Roman (1952) 113 Cal.App.2d 584, 585-587 [where the difference in elevation is not greater than 1/8 of an inch, the defect "is a minor and trivial [one] which as a matter of law affords no basis for a recovery"].) Sepmeyers reliance on Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d 210, is equally misplaced — that was a contributory negligence case that had nothing to do with the trivial defect doctrine.
Contrary to Sepmeyers contention, the trivial defect doctrine applies to private landowners to the same extent it applies to public entity landowners, the rule is not limited to sidewalks, and the issue is plainly one of law where, as here, it is undisputed that the deviation in floor levels is something less than 1/8 of an inch. This was an appropriate case for summary judgment.
DISPOSITION
The judgment is affirmed. Ralphs is entitled to its costs of appeal.
We concur: ORTEGA, Acting P.J. and MALLANO, J. --------------- Notes: Sepmeyer contends the floor in a store is different from exterior pavement because there are more distractions outside, where "one is expected to be normally observant, and to pay attention to trees, parking meters, bicycles, and other impediments to movement, including deformities and changes in surface levels." According to Sepmeyer, the floors in a supermarket have to be smooth and unobstructed to accommodate shopping carts. Whatever truth there may be to these general observations, it does not follow that a supermarket is the insurer of its customers safety. (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d at p. 399.)