Nicoletti v. Kest, 315 Cal.Rptr.3d 110

On April 9, 2020, during a thunderstorm, appellant Susan Nicoletti crossed Dolphin Marina Apartments’ North Side Gate driveway and observed rainwater forming a running current; no caution tape or warnings were present. The current knocked her down and she suffered shoulder, knee, and facial injuries.
Nicoletti was a 13‑year resident and testified she had used that entrance “thousands of times.” The complex also had a South Side Gate and an entrance on Panay Way.
Nicoletti sued for negligence and premises liability, alleging Dolphin had a duty to warn of the running rainwater.
Dolphin moved for summary judgment, arguing the hazard was open and obvious; the trial court granted the motion.
On appeal the court reviewed de novo and affirmed: the running water was an open and obvious danger and the necessity exception did not apply (and was forfeited below).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duty to warn for running rainwater (open‑and‑obvious)	Nicoletti: Although she saw water, she did not appreciate the lateral force/current as a danger and thus Dolphin had a duty to warn.	Dolphin: The running water was an open and obvious hazard; owner had no duty to warn.	The current was an obvious dangerous condition (wet, sloped concrete and flowing water); no duty to warn; summary judgment affirmed.
Necessity exception to open‑and‑obvious rule	Nicoletti: Crossing the North Side Gate was necessary, so the owner should have warned or remedied the hazard.	Dolphin: Multiple other entrances existed; argument not raised below (forfeited).	Argument forfeited on appeal; even if considered, no necessity shown (other entrances available); exception does not apply.

Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (2001) (summary judgment burden and shifting burdens of production and persuasion)
Saelzler v. Advanced Group 400, 25 Cal.4th 763 (2001) (appellate de novo review of summary judgment; resolve doubts for opposing party)
Sanchez v. Swinerton & Walberg Co., 47 Cal.App.4th 1461 (1996) (standing water and its danger are obvious; no duty to warn)
Kinsman v. Unocal Corp., 37 Cal.4th 659 (2005) (necessity/practical necessity can overcome open‑and‑obvious rule in some circumstances)
Kaney v. Custance, 74 Cal.App.5th 201 (2022) (applies necessity exception where sole access made use of dangerous condition foreseeable)
Jacobs v. Coldwell Banker Residential Brokerage Co., 14 Cal.App.5th 438 (2017) (elements of premises liability and duty analysis)
Rowland v. Christian, 69 Cal.2d 108 (1968) (factors for imposing duty in premises cases)
Betts v. City and County of San Francisco, 108 Cal.App.2d 701 (1952) (wet sloped concrete is slippery and unsafe footing)
Kesner v. Superior Court, 1 Cal.5th 1132 (2016) (courts should assign duties to those best situated to prevent harm)