MARYAM DAY et al., Plaintiffs and Appellants, v. LUPO VINE STREET, L.P., et al., Defendants and Respondents.
B282996
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 4/11/18
(Los Angeles County Super. Ct. No. BC623354)
Ruth A. Kwan, Judge.
CERTIFIED FOR PUBLICATION
LippSmith Law, MaryBeth LippSmith; Ryan Law and Andrew T. Ryan for Plaintiffs and Appellants.
Hartsuyker, Stratman & Williams-Abrego, John R. Miller; Horvitz & Levy, Stephen E. Norris and Eric S. Boorstin for Defendants and Respondents.
BACKGROUND
Lupo owns a multi-unit commercial building in Los Angeles. In 2011, Lupo entered into a five-year lease with Wild Card Boxing Club, Inc.2 for two units, covering approximately 5,000 square feet of space, for use as a “Boxing Club/Athletic Club.” Before signing the lease on behalf of Lupo, John Lupo inspected the premises by taking a “visual
On January 30, 2016, Omorishanla Olayinka was working out with a trainer at Wild Card when he suffered a fatal heart attack. Wild Card did not have an AED on the premises.
Olayinka‘s surviving spouse, Maryam Day, and daughter, Ayodele Omotolani Ifatosin Olayinka (through her guardian ad litem Maryam Day), and Olayinka‘s estate filed a lawsuit against Wild Card, its owner Freddie Roach, and Lupo, alleging claims for negligence per se and negligence based upon the failure to maintain an AED on the premises of Wild Card.
Lupo moved for summary judgment on the ground, among others, that it had no duty under
A. Statutory Duty
As noted,
In making this argument, plaintiffs ignore two important components of the definition of a “health studio.” To meet the definition, a “health studio” must permit the use or access to “its facilities and equipment” to individuals or groups on a membership basis. (
The fact that
A landlord who merely leases space to a “health studio” is not in a position to comply with any of these requirements. Thus, we find that Lupo did not have a statutory duty to acquire or maintain an AED.3
B. Common Law Duty
Plaintiffs contend that even if Lupo did not have a statutory duty to acquire and maintain an AED, it had a common law duty “to ensure the premises were equipped with an AED before Wild Card took
1. Negligence Principles
“The elements of a cause of action for negligence are: the ‘defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.‘” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 (Vasquez).) “The existence of duty is a question of law to be decided by the court [citation], and the courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition. [Citation.] However, acknowledgment of the broad proposition that landowners have a duty to exercise reasonable care to maintain their property in a safe condition provides scant guidance to a court that must determine the existence of the landlord‘s duty in a particular case.” (Id. at pp. 278-279.)
With regard to landlords, “reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.) “‘Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated
The existence of a duty “‘is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant‘s protection.’ [Citation.] . . . ‘“[D]uty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk.’ [Citation.]” (Vasquez, supra, 118 Cal.App.4th at p. 279.)
In Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland), the Supreme Court identified a number of factors that courts may consider to determine whether a duty applies in a particular case: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‘s conduct and the injury suffered, the moral blame attached to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for
With these principles in mind, we address plaintiffs’ contention that Lupo owed a duty to Wild Card‘s patrons to (1) provide an AED on the premises where Wild Card operated its boxing gym, or (2) require as a condition of Lupo‘s lease with Wild Card that Wild Card provide an AED on the premises.
2. Duty of Lupo to Provide an AED
The Supreme Court recently addressed the issue whether a large department store owed its customers a duty to make available on its premises an AED for use in a medical emergency. (Verdugo v. Target Corp. (2014) 59 Cal.4th 312 (Verdugo).) Although there are two important distinctions between that case and the present case (which we address below), the Court‘s opinion provides useful guidance for our analysis of the duty owed here.
The Supreme Court observed that when determining whether a business owes a “duty to take precautionary steps prior to the time . . . an injury or illness has occurred” – such as having an AED on premises in case a patron suffers a cardiac arrest – California courts primarily
Addressing the burden of providing an AED for the use of Target‘s patrons, the Supreme Court found it would be “considerably more than a minor or minimal burden on a business establishment. The statutory provisions and related regulations establishing the prerequisites to civil immunity for those entities acquiring an AED reflect the numerous related requirements that a jury is likely to view as reasonably necessary to comply with such a duty. Apart from the initial cost of the AEDs themselves, significant obligations with regard to the number, the placement, and the ongoing maintenance of such devices, combined with the need to regularly train personnel to properly utilize and service the AEDs and to administer CPR, as well as to have trained personnel reasonably available on the business premises, illustrate the magnitude of the burden. (See
As noted, there are two significant differences between the facts of Verdugo and the facts of this case. First, Verdugo involved the duty owed by the operator of a business to its customers, whereas the present case involves the duty of a landlord to the patrons of its tenant‘s business – a far more attenuated relationship. Second, the customers in Verdugo did not have any greater risk of suffering cardiac arrest on the premises than at any other place, while the patrons of the boxing gym were at a somewhat heightened risk of suffering cardiac arrest while working out on the premises. But on balance, those differences weigh in favor of finding no duty here.
First, the burden that the Supreme Court found was “considerably more” than minor or minimal with respect to Target would be even greater with respect to Lupo. The Court noted that providing an AED does not simply entail purchasing the device and keeping it on the property. Rather, it requires compliance with numerous statutory and
Second, although plaintiffs contend that it was foreseeable that a patron of the boxing gym might suffer cardiac arrest because “‘[i]t is a matter of common experience and knowledge’ that people may experience heart problems during strenuous exercise,” we question whether that purported “common experience and knowledge” may be imputed to Lupo, inasmuch as there is no evidence that any of the
Finally, even if it is “common experience and knowledge” that people who engage in strenuous exercise may experience heart problems, the question remains whether it is sound policy to require a landlord to investigate all of the dangers posed by the operation of the business of each of its tenants and to provide measures or devices to mitigate injuries caused by the tenant‘s business rather than by any dangerous condition on the property itself. We conclude it is not. “A landlord cannot be held to be responsible for all dangers inherent in a dangerous business.” (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 780.) Accordingly, we hold that the trial court correctly found that Lupo did not owe a duty to provide an AED on the premises where Wild Card operated its boxing gym.
Having determined that Lupo did not owe a duty to Wild Card‘s patrons to provide an AED on the premises, we must now determine whether Lupo owed a duty to require as a condition of its lease that Wild Card provide an AED on the premises. The short answer is that Lupo did require Wild Card to provide an AED, because the lease required Wild Card to comply with all laws and statutes, which would include
Applying the first Rowland factor – the foreseeability of harm to the plaintiff – requires a two-step process under the circumstances here. First, we must determine the foreseeability that Olayinka would suffer a sudden cardiac arrest. Second, we must determine the foreseeability that Wild Card would ignore its statutory duty to provide an AED while operating a boxing gym.
As discussed in Section B.2., ante, plaintiffs contend it is a matter of “common experience and knowledge” that there is an increased risk of suffering heart problems for someone who is engaging in strenuous
But even if we were to find in the first step that it was foreseeable to Lupo that Wild Card‘s patrons were at heightened risk of suffering sudden cardiac arrest, we find it was not reasonably foreseeable that Wild Card would ignore its statutory duty. “[E]very person has a right to presume that every other person will perform his duty and obey the law and in the absence of reasonable ground to think otherwise, it is not negligence to assume that he is not exposed to danger which could come to him only from violation of law or duty by such other person.” (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523.) In this case, there is no evidence to suggest that there was any reason for Lupo to think that Wild Card would not perform its duty under the law. Thus, we conclude it was not reasonably foreseeable to Lupo that Wild Card would not provide an AED on the premises while it operated a boxing gym.
Because, as the Supreme Court has repeatedly instructed, “foreseeability is a ‘crucial factor’ in determining the existence and scope of a legal duty” (Delgado v. Trax Bar & Grill, supra, 36 Cal.4th at
The second factor – the degree of certainty that the plaintiff (or plaintiffs’ decedent) suffered injury – weighs somewhat in favor of plaintiffs. While there is no doubt that Olayinka suffered a cardiac arrest, it is not certain that his death would have been prevented had an AED been available on the premises. The remaining factors, however, weigh in favor of finding no duty.
With regard to the third factor – the closeness of the connection between the defendant‘s conduct and the injury suffered – there is no connection between anything Lupo did or did not do and Olayinka‘s cardiac arrest. In this respect, this case is similar to Rotolo, in which the survivors of a teenager who suffered a heart attack while playing hockey at the defendants’ facility sought to recover negligence damages for the defendants’ failure to notify users of the facility of the existence and location of an AED on the premises. The court found that “[e]ven assuming . . . that respondents possessed a general knowledge that athletes may succumb to sudden cardiac arrest during strenuous activities, they could not have prevented such an occurrence, which is a risk assumed by those playing the sport. There is therefore no close connection between anything respondents did or did not do and the injury suffered by [the victim] that led to his death.” (Rotolo, supra, 151 Cal.App.4th at p. 337.)
With regard to the fifth factor – the policy of preventing future harm – the Legislature has already mandated that the operators of all health studios provide an AED on their premises. Thus, there is no need to impose a duty upon the landlord to prevent future harm.
The sixth factor – the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with
The final Rowland factor – the availability, cost, and prevalence of insurance for the risk involved – is not at issue here, because the record before the trial court did not include any evidence regarding insurance.6 (See Formet v. The Lloyd Termite Control Co. (2010) 185 Cal.App.4th 995, 604 [court cannot evaluate insurance factor in the absence of evidence regarding liability insurance].)
In sum, the balance of the Rowland factors weigh in favor of finding that Lupo did not owe plaintiffs a duty to ensure that Wild Card obtain and maintain an AED on the premises where it operated its boxing gym. Accordingly, the trial court did not err in granting Lupo summary judgment on the ground that plaintiffs could not establish a necessary element of their negligence cause of action.
The judgment is affirmed. Lupo shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.