Wednesday, March 31, 2010
Court of Appeal Revives Suit by Woman Impaled by Pipe at Cemetery
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday revived a lawsuit against a Whittier cemetery by a woman who was impaled by an exposed pipe when she fell while visiting her mother-in-law’s grave.
In an unpublished decision, Div. Three concluded that there were triable issues of fact as to whether the Rose Hills Company, which operates Rose Hills Memorial Park and Mortuary, maintained a dangerous condition on its property which caused Eileen Norwood’s injury.
Norwood and her husband visited Rose Hills on Mother’s Day in 2005. In order to discard some clippings from the flowers she had brought with her, Norwood walked across a road to a trash container set on a concrete pad.
A water faucet and a pipe were set in, and arose vertically from, the concrete pad near the trash can. The pipe was 1 inch in diameter and 17 7/8 inches tall.
Although nothing obstructed her view, Norwood said she did not see the wet patch on the concrete pad surrounding the faucet and pipe, or the pipe, when she approached the trash can.
She said she slipped on “slime” as she turned away from the trash can after discarding her clippings, and as she fell, she was impaled on the pipe, which punctured her lung and liver.
After Norwood was taken to the hospital, her husband took photographs of the accident location and her shoes. The photographs show mud and algae on her shoes.
Norwood later sued Rose Hills in the Los Angeles Superior Court, asserting causes of action for premises liability and negligence, and the cemetery moved for summary judgment.
Rose Hills argued the wet concrete where Norwood fell was not a dangerous condition since a reasonable person in Norwood’s position would have seen the wet concrete on that clear and bright day and “either avoided it… or used extra care when walking on it.”
In opposing the motion, Norwood insisted that the concealed mud and algae adjacent to the leaking faucet accumulated on the sloping concrete walking surface, adjacent to an unprotected pipe, by a trash can where pedestrians were invited to walk, constituted a dangerous condition that was not trivial, open or obvious.
In May 2008, the trial court issued a tentative ruling granting Rose Hills’ motion, but subsequently entered an order denying it. Rose Hills then filed a motion for clarification, which the trial court construed as a motion for reconsideration.
Finding that it had the inherent authority to reconsider its prior ruling, the trial court chose to do so and entered a formal order granting summary judgment in favor of Rose Hills. Norwood and Rose Hills later entered into a stipulated judgment on the basis of the trial court’s ruling.
Writing for the appellate court, Justice Richard D. Aldrich explained that the trial court erred in granting summary judgment since a reasonable trier of fact could conclude that the area where Norwood fell was moist or wet for a sufficient time to allow algae to grow and mud to accumulate based on the photographs of her shoes; that the pipe was an impalement hazard because it was narrow and had no protective covering; and that given the proximity of the uncapped pipe and the slippery area, the debris hidden from view, and the slant of the gutter, that Rose Hills maintained a dangerous condition on its property.
“These physical characteristics of the accident scene also defeat Rose Hills’s argument that, as a matter of law, the condition of its land was open and obvious to Norwood,” since a reasonable trier of fact could find that a pedestrian would not have seen the slippery debris of the algae and mud under the accumulated water, understood the dangers of the slant of the gutter and the pipe, and understood that she should have taken a different route, the justice added.
Further, since the wet cement was near a trash can and a faucet provided to guests for obtaining water for their flowers, Rose Hills would have known that people would traverse the wet pavement, and therefore may have had a duty to warn of the dangerous condition, Aldrich said.
Joined by Presiding Justice Joan D. Klein and Justice Patti S. Kitching, Aldrich ordered the matter remanded to allow the parties to litigate the issue of duty and have a trier of fact determine if there was a dangerous condition, if the condition was open and obvious, and if it was trivial in nature.
Oxnard attorney Greg May represented Norwood while John M. Garrick and Andrew K. Doty of Larson, Garrick & Lightfoot represented Rose Hills.
The case is Norwood v. Rose Hills Company, B211925.
Copyright 2010, Metropolitan News Company