Beaver v. P.A.T.H.

Filed 4/14/06 Beaver v. P.A.T.H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Jacqueline A. Connor, Judge. Reversed.

Law Offices of Harry O. Schenk and Harry O. Schenk for Plaintiff and Appellant.

Harrington, Foxx, Dubrow & Canter, and Dale B. Goldfarb, Mark Flory, Edward W. Lukas, Jr., and Colleen R. Smith for Defendant and Respondent.

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Plaintiff and appellant Gerry L. Beaver appeals from the summary judgment entered against him and in favor of defendant and respondent P.A.T.H. on Beaver's personal injury complaint arising out of an incident in which Beaver slipped and fell on P.A.T.H.'s property. Beaver contends there were triable issues of material fact. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

P.A.T.H., an acronym for People Assisting the Homeless, is a nonprofit organization providing shelter and other services to the homeless. At the relevant time, Beaver was a resident at a P.A.T.H. facility. P.A.T.H. residents are assigned morning and evening chores by a P.A.T.H. staff member; chore assignments are rotated every two weeks. Residents are taught by staff members how to perform their assigned chores and the failure to perform assigned work may result in the resident losing privileges or other sanctions. Except for those performing assigned chores in the kitchen, residents are not allowed in the kitchen without permission. Responsibilities that allow residents access to the kitchen include (1) bussing dirty dishes from the dining room into the kitchen and then washing those dishes after meals, and (2) sweeping and mopping the kitchen floor after the dishes have been washed and put away. The kitchen floor is mopped with a combination of Pine Sol and water mixed in a bucket in the kitchen. Mopping takes no more than 10 minutes. After the floor has been mopped, the kitchen doors are locked.

On March 30, 2003, Beaver had been living at the P.A.T.H. facility for about 38 days.^[1] At the time, Emilio Martinez was on staff as an Employment Associate. In this capacity, Martinez was responsible for overseeing the facility and the residents, including making sure they followed the rules and did their assigned chores. That day, Martinez arrived at the facility at 4 p.m. He was the only staff member on site. Every 15 to 30 minutes from his arrival onward, Martinez made his usual rounds to inspect the facility, including the kitchen. At 6 p.m., Martinez served dinner to the residents. After dinner, when the resident assigned the chore of bussing and washing the dinner dishes had not arrived, Martinez assigned the chore to Beaver. The task required Beaver to carry a load of dishes from the dining room into the kitchen in a two-foot square, six-inch deep plastic container, which he carried chest high. The plastic container blocked Beaver's view of the floor. Beaver made his first trip into the kitchen at about 7:01 p.m. and his second sometime between about 7:06 and 7:11 p.m. Meanwhile, Martinez resumed his rounds. When Martinez inspected the kitchen some time between 7:05 and 7:10 p.m., Martinez did not notice a puddle of liquid soap surrounded by a puddle of water or any other spill or debris on the kitchen floor. At about 7:15 p.m., while carrying the container of dishes on his third trip into the kitchen, Beaver slipped and fell.

According to the contemporaneous written Incident Report prepared by Martinez: â€