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C.A. Reinstates $850,000 Verdict in Slip-and-Fall Case
Justice Wiley Says Jury May Make Assumption As to Causation Based on Common Sense
By a MetNews Staff Writer
A jury’s verdict may be founded on supposition as to causation where a hunch comports with common sense and contrary theories don’t, the Court of Appeal for this district held yesterday.
The opinion by Justice John Shepard Wiley Jr. of Div. Eight orders reinstatement of a $850,000 verdict in favor of warehouse supervisor Jorge Perez who, on Jan. 7, 2017, slipped and fell in the hallway of the Hibachi Buffet in Inglewood after using a restroom. There was trail of liquid on the floor about 10 feet long and 10 inches wide which started before the restrooms and continuing past them.
“When one explanation adds up and competing explanations do not, it is reasonable to accept the sensible explanation in a situation this simple,” Wiley wrote. “That is logic, not speculation.”
Kendig Reversed
Then-Los Angeles Superior Court Judge Holly E. Kendig (now retired) had a contrary view. On Jan. 24, 2020, she granted a motion for judgment notwithstanding the verdict and a motion for a new trial, explaining in each order:
“There was no evidence at trial that carts ever dripped liquid. And there was no evidence that carts dripped liquid on the day of the incident…..When there is an absence of evidence, as there was in this case, it is no more speculative to presume that the liquid was spilled by a visitor or customer than it is to speculate that an employee spilled it.”
She went on to say, in the orders:
“Without evidence, Plaintiff’s counsel asked the jury to ‘use its common sense’ and extrapolate that ‘it has to be something that an employee was carrying, either a cart, a bucket, something that the employees were carrying down that hallway.’…There was no evidence to support these theories. In the absence of evidence. Plaintiff asked the jury to speculate. Although Plaintiffs counsel contends he proved his case with inferences and circumstantial evidence, the inferences he asked the jury to make were not evidence based, and therefore were speculation.”
Wiley’s Opinion
In his opinion reversing Kendig’s orders, Wiley said:
“Perez’s counsel argued to the jury that it was more likely than not that a restaurant employee spilled the liquid, which made the tile slippery and caused the fall.
“Perez’s analysis made sense. It required an inference, but the inference was logical. Everyone agreed a trail of liquid in fact was on the hallway floor. It got there somehow. Perez’s suggestion fit common experience: more likely than not, it came from a restaurant employee who spilled liquid taking dirty dishes from the dining area to the kitchen.”
The jurist remarked:
“Many events in human affairs are complex or beyond explanation….Spilling liquid from dishes headed for the kitchen is not one. This matter was within the jury’s experience and competence.”
Admission Ignored
Wiley faulted Kendig for omitting from her analysis in connection with the granting of a new trial that in discovery, Hibachi was asked to “[a]dmit that during business hours your employees transport dishware from the main dining room of the subject premises to the kitchen using the subject hallway,” and it admitted.
The justice set forth:
“It is an abuse of discretion to grant a new trial on the ground of insufficient evidence without mentioning a pertinent discovery admission Admissions are conclusive and not subject to being contested through contradictory evidence. A court disparaging the evidentiary basis for a verdict must explain how its view squares with the conclusive and contrary power of this discovery device.
“That explanation was missing here.”
Rejecting Jury’s Verdict
Criticizing the granting of a judgment NOV, Wiley commented:
“[W]hen viewing the demit verdict, it was legal error to impermissible speculation. The evidence in a light favorable to reject the verdict as jury was reasoning, not guessing.”
The case is Perez v. Hibachi Buffet, 2022 S.O.S. 4215.
Attorneys for Perez were Daniel K. Kramer and Teresa A. Johnson of the Century City firm of Kramer Trial Lawyers and Stuart B. Esner and Kevin K. Nguyen of the Pasadena firm of Esner, Chang & Boyer. Representing Hibachi were Don Willenburg of the Oakland firm of Gordon Rees Scully Mansukhani LLP and downtown Los Angeles attorneys Frank Thomas Sabaitis and Jeanette Chu of Miller Law Associates.
Copyright 2022, Metropolitan News Company