Unreported / Non-Citable
Background
Pamela Sowers visited the Mini of Ontario car dealership in February 2022 to inspect a loaner vehicle parked in the service canopy area. While walking around the vehicle with dealership employee Abigail Lopez, Sowers tripped on a sloping concrete curb and fell. The curb was approximately six inches high and located along a narrow concrete sidewalk inside the north wall of the canopy area. Unlike other curbs on the premises, which defendants had painted safety yellow so people could see them, this curb remained unpainted light grey concrete, matching the surrounding drive aisles and sidewalk. Sowers later passed away, and her estate's successor-in-interest, Julie Franco, was substituted as plaintiff.
Franco sued PAG Ontario B1, Inc. and Penske Automotive Group Inc. for premises liability and negligence, alleging the unmarked curb was a dangerous trip hazard and that defendants failed to warn visitors or maintain reasonably safe premises. Defendants moved for summary judgment, arguing no dangerous condition existed, they lacked actual or constructive notice, and the curb was an open and obvious condition that Sowers appreciated. They relied on surveillance video and medical records showing prior falls. Franco opposed with deposition testimony and declarations from three experts: biomechanical engineer Albert Vangura, human factors expert Kevin Rider, and forensic architect Lee Martin. The experts opined the curb was inconspicuous, the elevation change was not readily identifiable, and the placement of the loaner vehicle directed Sowers's attention away from the hazard.
The trial court overruled all of defendants' objections to Franco's evidence but granted summary judgment in defendants' favor. It found there was no showing that defendants had actual or constructive notice of the dangerous condition, which mooted the remaining issues, and concluded Franco did not present a triable issue of material fact on proximate causation. Franco appealed.
The Court’s Holding
The Court of Appeal reversed. It first addressed the impact of the trial court's evidentiary ruling. Because the trial court overruled all of defendants' objections to Franco's expert declarations, and defendants failed to separately challenge that ruling on appeal under the abuse of discretion standard, the appellate court considered and liberally construed those declarations in deciding the propriety of summary judgment. The court held the declarations demonstrated the trial court erred.
On the merits, the court held defendants did not meet their threshold burden on whether the curb was an open and obvious condition or whether Sowers's own actions were the sole proximate cause of her fall. The court viewed the surveillance videos and found they did not conclusively show the curb was obviously conspicuous or that Sowers stepped onto it with awareness of the elevation change. The videos left room for reasonable differences of opinion, precluding summary judgment. The court analogized to Jones v. Awad, where the existence of a step was visible but the indistinct elevation change was not apparent.
The court further held Franco's evidence raised triable issues of material fact on the existence of a dangerous condition and notice. Defendants' own service manager acknowledged other curbs were painted yellow for visibility, permitting a reasonable inference that unpainted curbs posed an unreasonable risk and that defendants were aware of the hazard. The expert declarations squarely addressed dangerous condition and notice. Because the court resolved the appeal on these grounds, it did not reach whether Franco preserved an imputed notice theory.
Key Takeaways
- A defendant moving for summary judgment must conclusively negate an element of the plaintiff's claim or show the plaintiff cannot reasonably obtain needed evidence; only then does the burden shift to the plaintiff.
- When a trial court overrules objections to expert declarations and the opposing party does not separately challenge that evidentiary ruling on appeal, the appellate court will consider and liberally construe those declarations in reviewing summary judgment.
- Surveillance video that leaves room for reasonable differences of opinion on whether a hazard was open and obvious or whether the plaintiff's conduct was the sole proximate cause cannot support summary judgment.
- A property owner's practice of painting some curbs yellow for visibility can permit a reasonable inference that unpainted curbs are hazardous and that the owner had notice of the dangerous condition.
- Expert declarations that provide reasoned explanations for conclusions on dangerous condition and notice can raise triable issues of material fact sufficient to defeat summary judgment in a premises liability case.
Why It Matters
This decision reinforces that summary judgment is inappropriate in premises liability cases where the plaintiff presents reasoned expert testimony and circumstantial evidence of notice, even when the defendant relies on surveillance video. It underscores that the open and obvious doctrine does not automatically relieve landowners of their duty of care when the elevation change or hazard is indistinct, and that a property owner's own remedial practices—such as painting other curbs—can serve as evidence of notice. The opinion also highlights the importance of separately challenging evidentiary rulings on appeal; failure to do so forfeits the issue and allows the appellate court to consider the challenged evidence under a liberal construction standard.