Page 1
Court of Appeal:
No Liability for Injury From Crumbling Hotel Shower Head
Theory Rejected That Housekeeper’s Negligence Must Necessarily Be Assumed
By a MetNews Staff Writer
The Court of Appeal for this district, in an opinion certified for publication yesterday, affirmed the dismissal of a premises liability action brought by a woman who, while staying at the Sofitel Hotel in Beverly Hills, took a shower, was sprayed in the face by a moveable shower head, yanked the head from its mooring and, as it fell apart in her hand, was cut and fell, incurring injuries.
Justice John Shepard Wiley Jr. of Div. Eight authored the opinion, which was filed March 13 and initially was not certified for publication. Los Angeles Superior Court Judge Jill Feeney properly granted summary judgment in favor of Accor Management US, Inc., which operated the luxury hotel at the time of the mishap, Wiley said, declaring that plaintiff Monique Howard “failed to mount a triable issue of material fact on the key issue of notice and failed to establish the applicability of a venerable but inapt doctrine—res ipsa loquitur.”
Howard testified that she took a shower on the night of March 24, 2017 and the next morning, using the hand-held shower wand; it functioned properly; she left the room at about 10 a.m. on March 25, returning at about 1 p.m.; that the room had been cleaned; and when she showered again, the shower wand broke.
‘Common Sense,’ ‘Experience’
“Common sense and experience tell us that handheld shower wands are not sharp and do not suddenly fall apart in a person’s hand, unless someone was negligent” she maintained in her opening brief on appeal.
Both she and her boyfriend, Michael Wolfe, who was sharing the room with her, were absent when the room was cleaned and “it is undisputed that Defendant’s housekeeper is the only person who had access to the shower wand before Plaintiff was injured by it,” she set forth.
“If the housekeeper broke the shower wand, then necessarily Defendant knew about it and/or should have known about it, since the housekeeper was Defendant’s employee,” Howard argued.
“If ever there were a case to demonstrate situations in which the doctrine of res ipsa loquitor appropriately applies, it is this one,” she contended. “Res ipsa loquitor, which is Latin for ‘the thing itself speaks,’ is a common law theory which has been codified under California Evidence Code section 646 and establishes an evidentiary presumption of negligence unless the defendant counters with evidence establishing a contrary finding.”
Wiley’s Opinion
Rejecting Howard’s theory that knowledge of the housekeeper, Maria Milagros Simon, that she broke the shower head must be imputed to the defendant, Wiley said:
“Howard’s problem is nothing shows the housekeeper did anything to break the shower wand. The evidence does not show the housekeeper was required to use the wand. There was no evidence from the housekeeper, as Howard decided not to depose her. No evidence suggested this housekeeper used this wand during her cleaning that day.”
The justice commented:
“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….
“Howard’s deposition testimony leads to reasonable inferences the cause was something else: the shower head sprayed Howard because it was facing her, and Howard’s quick reach for the wand or an inherent defect could have caused its dismantling. There is no inconsistency between these causes and Howard’s and her boyfriend’s statements about the care they took with their earlier showers.”
No Deposition
Accor remarked in a footnote in its appellate brief:
“Tellingly, Howard opted not to depose Ms. Simon—even when Sofitel offered to make her available for deposition on short notice so that her testimony could be included in Howard’s opposition to Sofitel’s motion for summary judgment….The ‘housekeeper broke the wand’ argument is a ruse advanced in an attempt to manufacture a triable issue.”
Wiley noted that “instead of deposing the housekeeper, Howard had an expert speculate about what she did.” He said Feeney sustained most of the evidentiary objections to the expert’s declaration, and did so appropriately, explaining:
“Trial courts have a duty to act as gatekeepers. They must exclude speculative expert testimony….This court’s decisionmaking was not an abuse of discretion.”
Res Ipsa Loquitur
Addressing Howard’s contention that res ipsa loquitur applies, Wiley wrote:
“This doctrine applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence….The doctrine has three requirements: (1) the accident was of a kind that ordinarily does not occur absent someone’s negligence; (2) the instrumentality of harm was within the defendant’s exclusive control; (3) the plaintiff did not voluntarily contribute to the harm….
“Two elements are missing here. First, as addressed above, it is not apparent hotel shower heads only fall apart due to the hotel’s negligence. Second, Howard’s deposition testimony suggests her grabbing action could have caused the break.”
The request for publication came from the Association of Southern California Defense Counsel and the Association of Defense Counsel of Northern California and Nevada.
The case is Howard v. Accor Management US, Inc., B320603.
Copyright 2024, Metropolitan News Company