Ness v. Alexander & Baldwin, Inc.

Filed 3/21/06 Ness v. Alexander & Baldwin, Inc. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found the owner and operator of an office building liable for injuries plaintiff sustained when she slipped and fell on the floor of the building's lobby. The losing parties appeal, claiming (1) the trial court erred in allowing testimony which was contrary to plaintiff's prior interrogatory responses; (2) insufficient evidence supports the finding they had knowledge of the dangerous condition; and (3) they could not be liable as a matter of law because plaintiff had superior knowledge of the dangerous condition. We necessarily reject each of these arguments and affirm the judgment.

FACTS

Plaintiff Amanda Ness contracted polio as a young child, and has undergone numerous surgeries to her left hip, leg, and ankle to enable her to walk without assistance. She also had several levels of her spine fused to correct scoliosis. As a result of the polio, she walks with an abnormal gait, locking her left knee, using it as a pivot, and then bringing the right leg forward and over.

Plaintiff is an attorney employed by the State Compensation Insurance Fund. Her office is in a building owned by defendant Alexander & Baldwin, Inc. (A&B) and managed by defendant Jones Lang LaSalle Americas, Inc. (Jones Lang). Defendant Sutter Building Maintenance (Sutter) provided janitorial and maintenance services for the building under a contract with Jones Lang.

February 21, 2001, was a rainy day. Most of the rain fell before plaintiff's office building opened that day at 6:00 a.m. Wearing a raincoat, plaintiff attended a workers' compensation hearing in the morning at a different site, and then arrived at her office building between 11:00 a.m. and noon. One-hundredth of an inch of rain fell between 11:00 a.m. and 12:00 noon.

Plaintiff parked her car and walked toward the building's east, or rear, entrance. She pulled a cart with one hand, and carried a cup of coffee with the other. The pavement was damp. There was no mat directly outside the door. There was a mat immediately inside the door, but there were no caution cones or a runner carpet leading from the entryway to the elevator.

As plaintiff walked into the building, the door hit her cart, tipping it over and spilling some of its contents. A coworker, Curt Kammeier, came over and helped her right and reload the cart. Kammeier took the cart and went ahead of her towards the elevator.

Plaintiff wiped her feet on the mat, and began walking toward the elevator. Because of the possibility of moisture on the floor and due to her preexisting medical condition, plaintiff took slow, small steps. She commented at trial she did not â€