LOS ANGELES (Legal Newsline) - A woman who sued her sister’s landlord after falling down a pair of bathroom steps can take her case to a jury even though she doesn’t remember what happened, a California appeals court ruled.
The Second Appellate District rejected arguments it would be speculation on the jury’s part to determine how the plaintiff fell even though she claimed to have no memory of the accident herself.
Lydia Kaney was staying with her sister Marilyn Mazza at a rental home in Hermosa Beach when she tripped and fell, causing unspecified injuries. She sued her sister and the landlord, Shirley Cassell, arguing the landlord should have installed a rail on the stairs. Her sister settled for $300,000, but the landlord moved to dismiss the case, arguing any hazard was open and obvious and there were no fact questions for the jury to decide since Kaney couldn’t remember why she fell.
Asked in a deposition what happened, Kaney said she remembered the bathroom light wasn’t working and couldn’t remember slipping on anything before she fell, although her sister testified she suspected a bathmat was to blame and removed it after the incident.
“I don’t have a full remembrance,” Kaney testified. “Somehow, all of that is blocked out.”
The trial judge dismissed the case, ruling that whether or not the stairs were hazardous, Kaney had failed to meet her initial burden of showing they caused her to fall.
Kaney appealed, and the Second Appellate District, in a Jan. 19 opinion penned by Justice Judith Ashmann-Gerst, reversed the dismissal.
“A slip-and-fall plaintiff need not remember her fall to recover damages provided the evidence gives rise to a reasonable and probable inference that the defendant’s negligence was a substantial contributing factor,” the court said.
California courts have upheld similar decisions, the appeals court noted, including one in which a woman with a history of blackouts was allowed to sue her landlord after she climbed out of her kitchen window onto a platform and fell. The plaintiff couldn’t remember why she fell but her expert witness said it might have been because the platform railing was 9 inches too low.
Cassell cited California decisions requiring plaintiffs who rely on inferences to show they are “deducible from the evidence” and not “derived from speculation, conjecture, imagination or guesswork.” The plaintiff cited a report by her expert witness, however, who said the steps in the old house violated various building codes, were too narrow, and lacked a handrail.
After the dismissal, the plaintiff filed a motion for a new trial, citing “newly discovered evidence” in the form of revisions to her previous statement in which she now recalled “the stairs felt awkward. It felt as though there was a step missing or not in the right place.” Her paid expert then revised his statement to declare the stairs were unsafe and caused her fall.
The trial judge rejected her new evidence, saying she failed to show it contained new facts she didn’t know before.
The appeals court rejected Cassell’s argument that any hazard was open and obvious. California courts have created an exception when a property owner can foresee people taking the risk anyway. In this case a jury might decide the landlord should have anticipated Mazza’s guest would have to use the bathroom, the appeals court ruled.
“This argument fails because Cassell never wrestles with the exception to the rule,” the appeals court said.