Res ipsa loquitur does not apply to ordinary negligence claim (Howard v. Accor)

 

Hotel operator not liable for showerhead malfunction under res ipsa loquitur theory

The Second District, Division Eight has affirmed a grant of summary judgment by the Hon. Jill Feeney, Judge Presiding, of the Los Angeles County Superior Court. (Howard v. Accor Management (April 3, 2024) B320603.)  The plaintiff alleged two theories of negligence, claiming that:

As Monique Howard went to shower during her hotel stay, the handheld shower head fell apart. Howard cut herself and fell. Later she sued the hotel for negligence and premises liability. The trial court granted summary judgment. We affirm because Howard failed to mount a triable issue of material fact on the key issue of notice and failed to establish the applicability of a venerable but inapt doctrine—res ipsa loquitur. (Id., pp. 1-2.)

Specifically, plaintiff alleged the shower head malfunctioned not after she used it in the morning but after she did so later in the day, and thus only after her hotel room had been cleaned, and that on this second use the shower head fell apart:

As soon as I stepped in the shower and turned the water on I noticed that it was spraying me in the face, which was a little odd for me because I had took a shower earlier that day. I was -- kind surprised me, plus I had full makeup on. It was spraying me in my face. When that happened I went to take the shower off of the shower handle and that is when it just dismantled and fell apart.” (Id., p. 2)

Defendant Accor moved for summary judgment, which the trial court granted. The appellate court affirmed, finding plaintiff had not shown there was a triable issue as to the issue of whether the hotel had any notice of the defect in the shower head as plaintiff could not show either actual or constructive notice.

The appellate court also found that plaintiff could not show the doctrine of "res ipsa loquitur," Latin for "the thing speaks of itself," applied.  This doctrine may be used to show the negligence of the defendant from the factual scenario, i.e., that it was "more likely than not"  defendant was negligent, without the need to provide more specifics as to what the defendant actually did that breached the standard of care.  The Second District rejected this argument, noting the plaintiff had not proven the elements of the doctrine because, inter alia, the trial court had sustained objections to the proferred testimony of the plaintiff's safety expert, Brad Avrit, on the grounds his statements involved improper legal opinion.

Importantly, the court noted res ipsa did not apply because the facts did not show it was more likely the defendant's negligence, as opposed to some other cause, caused the injury:

Howard’s papers ask us to make many leaps of logic to infer it was more likely than not that the housekeeper’s negligence caused the shower wand to break. [Citation.] Howard’s deposition testimony leads to reasonable inferences the cause was something else: the shower head sprayed Howard because it was facing her, and Howard’s quick reach for the wand or an inherent defect could have caused its dismantling. There is no inconsistency between these causes and Howard’s and her boyfriend’s statements about the care they took with their earlier showers. The evidence does not show the shower wand was broken before Howard grabbed it. When describing the incident at her deposition, Howard did not say the wand was sharp or broken then. Nor does Howard’s declaration say she was cut before the wand fell apart. (Id., pp. 7-8.)

Conclusion and analysis

The opinion of Justice Wiley affirmed the grant of judgment in favor of hotelier Accor, finding the trial court made no errors of law and that the rulings upon the objections to Mr. Avrit's opinions were well within that court's sound discretion.  The key portion of the opinion is the discussion of res ipsa loquitur, which the trial court found was only applicable to show negligence when there was evidence, and not mere speculation, to show that all of its elements applied.  These elements, which the Howard court strictly construed, were summarized at pages nine and ten: 

. . . [A]s our Supreme Court has explained it, “certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks for itself.’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm. (Id. at pp. 825–826 & 836.)

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Court may consider attorney incivility in deciding whether to lower attorney fees awarded (Snoek v. Exaktime)

 

Courts may consider the incivility of counsel in deciding whether to lower the amount awarded to a party for said attorney's efforts

The Second District, Division Three, of the California Court of Appeal has upheld a trial court ruling reducing the amount of attorney fees awarded to a party due to the incivility of counsel for that party.  (Snoek v. Evaktime (October 21, 2023) BC708964.)  The Hon. Michael P. Linfield, Judge Presiding, of the Los Angeles County Superior Court, applied such a modifier against the plaintiff for the conduct of his counsel when the trial court awarded attorney fees:

Plaintiff Steve Snoeck appeals from the trial court’s order awarding him $686,795.62 in attorney fees after the court applied a .4 negative multiplier to its $1,144,659.36 adjusted lodestar calculation “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.” The court awarded Snoeck fees after he prevailed on one of his six causes of action against his former employer ExakTime Innovations, Inc. on his complaint for disability discrimination under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and related causes of action. The jury [had previously] awarded Snoeck $130,088 in damages on his claim ExakTime failed to engage in a good faith interactive process with him. (Id., p. 2.)

In ruling upon a post-trial motion for attorney fees, the trial court found plainrtiff's counsel's rates of $535.00 to $750.00 per hour "reasonable" but made several alterations to the fees requested, including mathematical corrections and applying a 1.2 positive multiplier to the to the "lodestar" rate awarded, given the length of the case and its "contingent" nature.  However, the trial court also found that plaintiff's counsel, Perry Smith, had been uncivil in sending communications containing ad hominem attacks on defense counsel and applied a .4 negative multiplier to the entire fee award.

In an opinion written by Justice Edgarton, the Second District found the trial court acted well within its discretion when it made this reduction.  In doing so the appellate court rejected the argument the .4 reduction was an improper "sanction" as well as that such a reduction controverted the purpose of the fee-shifting provision in FEHA:

Moreover, the court’s order specifically recognized civility was not just a moral good but an aspect of attorney skill. And, as discussed, ample evidence supports the court’s reduction of the lodestar to account for plaintiff’s counsel’s skill given his incivility toward opposing counsel and the court. (Cf. Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, 1363 [affirming application of positive multiplier given, in part, “ ‘the skill displayed by plaintiff’s counsel in overcoming the intransigent opposition of defendant’ ”].)
Nor did the court contravene the principles of the FEHA in doing so. The lodestar adjustment method—which gives the court the discretion to augment or diminish the lodestar figure to arrive at a reasonable fee—is the gold standard for determining an attorney fee award under the FEHA. (Id., p. 34; original emphasis.)

Potential consequences for counsel whose fees are reduced due to their own actions

To the extent such a fee reduction results in a decrease in monies ultimately paid to the client (and this is a hypothetical here, as we have no way of knowing if the plaintiff actually paid any fees out-of-pocket) a counsel whose actions have caused such a reduction in what is ultimately paid to a client may face certain consequences.  

First, the client may assert that engaging in uncivil conduct harming said client is a breach of the duty duties owed by the attorney, such as duties related to being a fiduciary and competently performing legal services.

Moreover, such an attorney assuredly owes a duty to the client to explain the consequences of such a ruling in terms of the reduction in attorney fees awarded including the specific reasons such fees are being reduced.  This implicates provisions of the California Rules of Professional Conduct, including rule 1.4 which provides a lawyer must keep a client informed as to significant developments in the case.  

Further, Rule 1.7 requires informing the client of any conflict of interest, and the breach of a fiduciary duty owed a client may be said to create such a "conflict."  Specifically, case law holds that  “attorneys have a fiduciary duty to disclose material facts to their clients, an obligation that includes disclosure of acts of malpractice.” (Beal Bank SSB v. Arter & Hadden LLP (2007) 42 Cal. 4th 503, at 514.)

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No Duty to Warn Tenant of Obvious Water Current (Nicoletti v. Goldrich Kest)

 

Landlord had no duty to warn of open and obvious condition of water current from flowing rainwater

The Second District, Division Eight has upheld a grant of summary judgment by the Hon. Daniel Crowley, Judge Presiding, of the Los Angeles Superior Court in a tenant versus landlord tort suit. (Nicoletti v. Goldrich Kest (November 14, 2023) B319377.)  Summary judgment was granted in favor of the landowner based on the defense that the hazard was an "open and obvious" condition.  Plaintiff Nicoletti allegedly fell due to a rainwater current while walking a dog on the premises she rented from defendant Dolphin Marina apartments, sued as the DBA of Goldrch Kent:

On April 9, 2020, Nicoletti took her neighbor’s dog for a walk around Dolphin’s apartment. . . . Nicoletti observed that it was raining that day with thunderstorms. At around 3:30 p.m., Nicoletti crossed the driveway of the North Side Gate entrance that led to the underground parking lot. The apartment complex also had a South Side Gate entrance and another entrance on Panay Way. Nicoletti testified that she had gone past the North Side Gate “thousands of times” before the incident.

Before crossing, Nicoletti observed that the concrete on the North Side Gate driveway was wet, and rainwater formed a current that was running down the driveway. Nicoletti did not observe any caution tape or other warning advisements. Nicoletti proceeded to cross, and the rainwater current knocked her down. Nicoletti then fell down the North Side Gate driveway and hit the gate at the bottom of the driveway. (Id., p. 2.)

The trial court found Dolphin did not have a duty to warn of the running rainwater on the driveway because it was a dangerous condition that was sufficiently obvious.  Dolphin countered  the danger from the water current was not obvious, but the trial court nonetheless granted summary judgment.  

The appellate court affirmed, noting the general rule that landowner must “maintain land in [its] possession and control in a reasonably safe condition.” (Alcaraz v. Vece (1997) 14 Cal. 4th 1149, at 1156; emphasis added.)  However, it also reiterated that "[a] harm is typically not foreseeable if the “dangerous condition is open and obvious," citing Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, at 446.

Upon appeal, Nicoletti further argued that an exception to this doctrine applied, namely that of "necessity."  The appellate court noted this argument was waived as it was first made upon appeal; nonetheless, the Nicoletti court considered and rejected this argument.  Writing for the majority, Justice Viramontes explained the "necessity" argument was not supported by the facts, and, more to the point, public policy indicated no duty should be imposed to place "warnings" due to temporary weather conditions:

Our holding is also consistent with our Supreme Court’s declaration that courts must assign tort duties “to ensure that those ‘best situated’ to prevent such injuries are incentivized to do so.” [Citation.]  Under these circumstances, Nicoletti was in a better position to avoid the obvious danger of walking across a current of water that formed as a result of a rainstorm that began that same day. As discussed above, Nicoletti could have chosen to use a different entrance. The burden imposed on Dolphin to constantly monitor weather conditions and immediately install warning signals is outweighed by Nicoletti’s ability to avoid a condition she should have observed as obviously dangerous. (Id., p. 9.)

Counsel for plaintiffs should note the obvious lesson that arguments destined for a Court of Appeal should first be made in the trial court.  

Defendants should be prepared to argue the applicability of the "necessity" exception to the open and obvious rule.  The defense should also be keen to address public policy issues, such as the scope of the duty the plaintiff seeks to impose, an example being the duty proffered here by the plaintiff, namely, that the landlord should have warned of the current due to the heavy rain that day.

Short take away - Policy does not cover COVID-19 losses as there is no direct physical loss or damage (Endeavor v. HDI Global)

Short take away - Second District sides with insurer as to much-litigated COVID coverage issues currently before the California Supreme Court

The Second District, Division Two has ruled in favor of an insurance company denying coverage to an entertainment entity for losses from the COVID-19, or SARS CoV-2, virus. (Endeavor v. HDI Global (Sept. 21, 2023) B323865) Endeavor had a commercial liability insurance policy with HDI which required that, for there to be coverage:

(1) there be an “[i]nsured physical loss or damage” to some property, and (2) this physical loss or damage to some property “occur within [1 or 10] statute mile[s] from [Endeavor’s] premises. . . .

Endeavor maintained the inclusion of the phrase "event" in another clause in the policy obviated the requirement that all losses include "physical loss of damage" to tangible property and sued insurer HDI when coverage was denied.  A demurrer challenged Endeavor's entire complaint, and this demurrer was sustained, without leave to amend, by the Hon. Elaine Lu, Judge of the Los Angeles County Superior Court.

Upon appeal Justice Hoffstadt wrote an opinion affirming the trial court and interpreting the policy as requiring not merely an event but also actual physical damage.  As the Endeavor opinion noted at the outset, issues as to whether 1) loss of property, rather than mere loss of use of property, is required for coverage, and 2) whether the absorption of COVID-19 on the surface of the property qualifies for coverage as a "loss," are both currently pending before the California Supreme Court:

This question is one on which the Courts of Appeal have split, and is pending before our Supreme Court in John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2022) 86 Cal.App.5th 1195 (John’s Grill), review granted Mar. 29, 2023, S278481, and Another Planet Entertainment, LLC v. Vigilant Ins. Co. (9th Cir. 2022) 56 F.4th 730, request for certification granted Mar. 1, 2023, S277893. Until that Court provides guidance, we side with the vast majority of cases holding that direct physical loss or damage to property, rather than mere loss of the property’s use, is a prerequisite for coverage. We further hold that two of the clauses in the policy here—namely, extension clauses dealing with orders by civil authorities and with impediments to access—do not, by their addition of the word “event,” eliminate the requirement of direct physical loss or damage to property.

Second, has “direct physical loss or damage to property” been sufficiently pled where, as here, the policy holder alleges that the virus that causes COVID-19 has either been deposited onto or “adsorbed” to the surface of the policy holder’s property? The Courts of Appeal have split on this question as well, and that question is pending before our Supreme Court in Shusha, Inc. v. Century-National Ins. Co. (2022) 87 Cal.App.5th 250 (Shusha), review granted Apr. 19, 2023, S278614. Until that Court provides guidance, we side with those cases holding that the ephemeral existence of COVID-19 or its predecessor virus on property does not constitute “direct physical loss or damage to property” as a matter of law. (Id., pp. 2-3.)

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