LOS ANGELES (Legal Newline) - A woman who claimed she was injured by an exploding shower nozzle failed to muster any evidence a hotel was to blame, an appeals court ruled, rejecting her argument a maid must have damaged the device while she was out shopping.
The ancient doctrine of res ipsa loquitur – “the thing speaks for itself” – failed to revive Monique Howard’s lawsuit because she couldn’t show how someone other than herself was to blame for the hand-held shower attachment coming apart.
Howard sued the Sofitel Los Angeles in 2019 over a 2017 incident in which she says the shower sprayed her in the face and then “dismantled and fell apart,” slicing her hand and causing her to “fall back on her tailbone,” causing severe injuries.
Howard hired an expert witness, Brad P. Avrit, who was prepared to testify the Sofitel must have known a maid had damaged the shower handle. But Howard’s lawyers relied on Avrit and the plaintiff herself, never calling the maid to testify about what did or did not happen that day. A trial judge rejected Avrit’s opinion as speculative and dismissed the case.
Howard appealed but California’s Second Appellate District was no more sympathetic, upholding the dismissal in an opinion by Judge John Shephard Wiley that was published on April 3.
The plaintiff’s theory was that she and her boyfriend showered in the morning, then went out shopping. While they were gone, the hotel maid entered their room and damaged the handle, which shattered when Howard took another shower in the afternoon. Since the maid was a hotel employee, the Sofitel had “constructive notice” the handle was in a dangerous condition, her lawyers argued.
That theory backed Howard into a corner, however, because it precluded her from arguing the shower had broken some time earlier and went unnoticed by the hotel. And while expert Avrit covertly visited the room a year after the incident, nothing he observed then could overcome the fact he was only guessing that the maid had damaged the handle months earlier.
As for res ipsa, the appeals court said the doctrine applies only if plaintiffs meet three conditions: The accident is of an unusual kind that happens only due to someone else’s negligence, the thing that caused the harm was in the defendant’s exclusive control, and the plaintiff didn’t contribute to the harm herself. Howard struck out on two counts, the appeals court ruled. First, it isn’t clear shower heads fall apart only due to a hotel’s negligence, the court said. And second, it is just as likely Howard damaged it herself when, as she testified, it unexpectedly sprayed her in the face and she grabbed the handle to turn it away.
“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,” the court concluded.
Howard was represented by Nguyen Theam Lawyers, Guenard & Bozarth and Gusdorff Law. The hotel was represented by Gordon Rees Scully Mansukhan.