Trachtman & Trachtman, LLP Wins MSJ for Target in Premises Liability Matter

Facts: On August 13, 2012, Plaintiff Erica Tyler entered a Target store in Buena Park to pick up a prescription. After filling the prescription, Plaintiff, who was with her mother, was walking along the Main Aisle toward the store exit. While in the midst of a conversation with her mother, Plaintiff encountered a spill on the Main Aisle between the check lanes and the Girls’ clothing department. Plaintiff slipped in a 2’ x 4’ clear and fresh, but dirty, puddle of water on the floor. Plaintiff claimed that her slip caused her to sustain lumbar disc bulges/protrusions at L3-4 and L4-5. Plaintiff underwent conservative treatment followed by two nerve root blocks. Plaintiff also claimed injuries to her right knee.

Ben Trachtman, with significant assistance from Kevin Henderson, defended the matter.

Via a Motion for Summary Judgment prepared by Kevin Henderson, Target presented a notice defense via the declaration and deposition testimony of a Guest Service Team Lead. Specifically, Target’s witness testified that she had inspected the subject area of the fall within ten (10) minutes of the fall and there was nothing on the floor. Rather, it was clean, dry and free of any foreign debris or substances. Plaintiff attempted to counter Target’s notice defense with oft-used safety expert, Brad Avrit, who provided a declaration that Target’s floor surface (smooth VCT) was inherently dangerous because it was slippery when wet and that Target, via its history of falls within its premises, knew of said dangerous condition. Accordingly, as the argument goes, Target was on actual notice of the dangerous condition and no “inspection” prior to the incident was sufficient to establish a notice defense. In response, because Mr. Avrit’s opinions improperly attempted to nullify existing California law on the subject of notice, we filed objections to Mr. Avrit’s declaration.

Outcome: On August 25, 2015, Orange County Superior Court Judge Mary Fingal Schulte granted Target’s MSJ. Judge Fingal Schulte found that Target met its burden of proof that Plaintiff lacked evidence to establish a necessary element of her cause of action. Based on same, the burden shifted to Plaintiff to produce evidence establishing that a triable fact existed regarding notice. Judge Fingal Schulte sustained our objections to Mr. Avrit’s declaration and specifically found that the inspection conducted ten (10) minutes prior to the fall established that Target did not have sufficient notice of the condition to correct it. In so finding, the Court emphasized the longstanding principle that the Owner is not an insurer of a visitor’s personal safety.