Is a plaintiff barred as a matter of law from proving causation in a slip and fall case if there were no witnesses to the fall and he or she remembers being on stairs¹ and then waking up in pain but does not remember the fall itself? No. That is not the law in California. We conclude that the trial court erred when it granted summary judgment in favor of defendant Shirley B. Cassell (Cassell)² on the negligence complaint filed by Lydia Kaney (appellant). Though appellant cannot remember falling on Cassell's stairs, the circumstantial evidence would permit a trier of fact to

[74 Cal.App.5th 205]

make a reasonable and probable inference that the condition of the stairs, including the absence of a handrail, was a substantial factor in the fall.³

The trial court concluded that appellant's inability to remember the fall meant that she lacked nonspeculative evidence of causation. This was error. A slip-and-fall plaintiff need not remember her fall to recover damages provided the evidence gives rise to a reasonable and probable inference that the defendant's negligence was a substantial contributing factor. (Leslie G., supra, 43 Cal.App.4th at p. 483, 50 Cal.Rptr.2d 785; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1087, 122 Cal.Rptr.3d 22.) This case involves such an inference.

The apartment building is situated at the summit of a steep hill that rises 15 to 18 feet above the public sidewalk. To enter plaintiff's apartment, it is necessary to leave the public sidewalk, climb a flight of ten steps, make a right-angle turn, traverse a private sidewalk that follows the edge of the hill for thirty or forty feet, and climb a flight of four steps to a platform immediately outside the front door of the apartment. No part of the platform, private sidewalk, or either set of stairs was enclosed by protective guard rails at the time of the accident.

On October 10, 1956, plaintiff, accompanied by a friend, was preparing to leave her apartment. She held the door open for her friend and paused to close the door. The friend had almost reached the top of the flight of ten steps leading to the public sidewalk when she heard plaintiff's cries, turned, and saw plaintiff lying upon the public sidewalk. Plaintiff has no memory of what occurred after she closed the door until she found herself back in her apartment after the accident. Thus, there were no eye-witnesses to the accident, and the trial court properly found that plaintiff was not guilty of contributory negligence. Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313; Gigliotti v. Nunes, 45 Cal.2d 85, 93, 286 P.2d 809; Campagna v. Market St. Ry. Co., 24 Cal.2d 304, 309,

Page 309

149 P.2d 281; Gallichotte v. California Mut., etc., Ass'n, 4 Cal.App.2d 503, 508, 41 P.2d 349. Under these circumstances the only reasonable inference is that plaintiff lost her footing and then tumbled down the steep embankment to the public sidewalk below and that a guard rail would have prevented her tumbling to the public sidewalk whether or not it would have prevented her initial loss of footing. The crucial issue, therefore, is whether or not the accident occurred at a place where defendants were under a duty to provide a guard rail.

Defendants contend that the trial court's finding that their negligence was not the proximate cause of plaintiff's injuries is supported by the language of the agreed statement that 'there is no evidence in the entire record showing or tending to show the cause of plaintiff's injuries.' As we have seen, however, there is evidence that compels the conclusion that one cause of plaintiff's injuries was the absence of a guard rail at the place she fell. We cannot assume that by including the quoted language in the agreed statement, plaintiff agreed that her appeal was without merit and that we should disregard the record. Palmer v. City of Long Beach, 33 Cal.2d 134, 144, 199 P.2d 952. The only reasonable conclusion that can be drawn from the record is that the quoted language refers only to the absence of direct evidence of the cause of the injuries or of any evidence of the cause of plaintiff's initial loss of footing. To interpret it to mean that there is no evidence that a guard rail would have prevented plaintiff's tumbling to the public sidewalk 15 to 18 feet below would render the agreed statement self-stultifying, for the only inference that can reasonably be drawn from the record is that a guard rail would have prevented plaintiff's injuries. The trial court's finding that defendants' negligence was not the proximate cause of plaintiff's injuries may be explained by its theory, apparently acquiesced in by plaintiff below, that defendants were negligent only in failing to provide guard rails for the platform and stairway and that there was no evidence that plaintiff did not fall from the private sidewalk. Since it appears as a matter of law, however, that defendants were negligent in failing to provide a railing for the platform, the stairway, and the private sidewalk, that plaintiff fell at one of those three places, and that a railing would have prevented her tumbling

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to the public sidewalk, the trial court's finding that defendants' negligence was not the proximate cause of her injuries cannot be sustained. Bissett v. South S. F. Ry., 67 Cal.App. 325, 328, 227 P. 671; Murray v. Southern Pacific Co., 177 Cal. 1, 10, 169 P. 675; Traylen v. Citraro, 112 Cal.App. 172, 174-175, 297 P. 649 (hearing denied by this court); Edgar v. Citraro, 112 Cal.App. 178, 180, 297 P. 654 (hearing denied by this court); Gallichotte v. [52 Cal.2d 727] California Mut., etc., Ass'n, 4 Cal.App.2d 503, 507-509, 41 P.2d 349; Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 603, 265 P.2d 542; Alarid v. Vanier, 50 Cal.2d 617, 621, 327 P.2d 897.

The back wall of the building stood flush with the rear property line. In this wall was an indentation, or lightwell, affixed to the outside of which was a series of steeply angled and vertical wooden ladders reaching from ground level to the roof, there being no access thereto from inside the building. Between these ladders were located two wooden platforms, one at the second floor level and one at the third, [187 Cal.App.2d 313] which extended across the lightwell. Access to the lower of these from the interior of the building could be had by means of any one of three windows, although the owner testified that such would be difficult for anyone to accomplish. The central one of these windows was located at the rear end of a public hallway, and the other two opened from appellant's kitchen and bedroom respectively.

The platform itself was composed of three parallel boards, two by six, which extended across the lightwell. Across these were several two by three boards which had been affixed, on edge, and in a staggered fashion. Reichel testified that the spaces between had been left in order that light might pass into the rooms. A singlespan, 32 1/2 inch high railing extended along the edge of this platform. Appellant testified that she had been aware, before her accident occurred, that there was just one railing, that it was 'too low,' that there were open spaces in the platform flooring, and that there was a hole therein which permitted access to the ladder. It is the allegedly dangerous condition of this platform to which her complaint in the instant action was directed.

Attached to the exterior frame of appellant's kitchen window was a pulley from which a clothesline extended to another pulley affixed to a building on the outside of the cement covered back yard. Both the latter building and the yard were owned by Reichel's wife. Appellant testified that in making use of this line, she normally would reach out through said window. It is also evident from the photographs in evidence that she could get out onto the platform for this purpose by going through the kitchen window.

On the day of the accident, appellant had washed clothes and hung them on this clothesline. Later, she had been in her kitchen again, this time washing dishes. However, she could remember nothing subsequent to that event until she found herself on her knees in the yard below. The fact that she fell, and that she suffered serious and permanent bodily injury as a result thereof, is not in dispute. Although the hospital records show that she had complained to sudden 'blackouts' or fainting spells which occurred prior to this time, there is no direct evidence whatsoever

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as to what actually occurred during this crucial interval.

Here, the owner states that the system of platforms and ladders was intended for employee use. Since an inference may be drawn from the evidence that they were also intended for tenant use, it follows that under these circumstances,[187 Cal.App.2d 317] the safety rules are applicable. Longway v. McCall, 181 Cal.App.2d 809, 4 Cal.Rptr. 635.

Even assuming arguendo that said rules do not apply, we have the additional problem of whether the system of platforms

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and ladders was dangerous and defective for tenant use, and if by the exercise of reasonable care, the landlord could have discovered this condition and could have made the property safe (Burks v. Blackman, supra).

Whether they were dangerous or not created an issue of fact for the jury to determine considering all of the circumstances here present.

Respondents, however, urge affirmance of the judgment on account of the failure of plaintiff to prove that the platform and ladders were the proximate cause of appellant's injuries. They argue that to reach this conclusion, the fact finder would have to base a verdict of finding on guess or conjecture. While at first blush, this may sound persuasive, it loses its potency in face of the photos and when you apply the safety orders. While it is true, as pointed out by respondents, there were no eyewitnesses to the accident and plaintiff has no memory of what occurred after she was in the kitchen until she found herself lying in the yard below, a crucial question arises as to whether the presence of a 42-inch top rail would have prevented her from falling over the rail to the yard below or whether the presence of a midrail would have prevented her from rolling off the platform to the yard below. It is conceivable that the jury could draw a reasonable inference that if appellant was out on the platform to retrieve her clothes from the line that she then suffered a blackout or fainting spell which either caused her to fall over the rail to the yard below or that she fell onto the platform and rolled off in the space between the top rail and the surface of the platform; that the presence of a 42-inch top rail or the presence of the mid-rail as required by the safety orders would have prevented this fall. Appellant's contention that this constitutes negligence as a matter of law is without merit. It merely presents an issue of fact for the court or jury to determine.

Burdette and Schumann are instructive. Though the plaintiffs in those cases could not remember their falls, the circumstantial evidence led to reasonable

[74 Cal.App.5th 220]

and probable inferences that each fell from a height due to the absence of adequate barriers that would have restrained them. Here, a trier of fact could draw a reasonable and probable inference in appellant's favor that she fell while on the stairs based on her testimony that she remembers being on the stairs and waking up on the floor in pain. Further, the evidence would permit a trier of fact to draw a reasonable and probable inference that the dangerous condition of the stairs was a substantial factor in the fall. Specifically, a trier of fact could conclude that appellant would not have fallen if, among other things, she had a handrail to give her balance or give her something to grab onto when stumbling.

In respondent's view, Burdette and Schumann are distinguishable because they involved the absence of barriers that would have blocked a fall. We, on the other hand, view these differences as ones of degree, not kind. It is true that a handrail

[289 Cal.Rptr.3d 372]

(or safely sized risers) would not have blocked appellant's fall, but a trier of fact could still reasonably infer they would have prevented the fall. Even though risers and handrails do not provide as much absolute protection as a railing next to a drop off, they still provide protection.

Respondent argues that an inference that the stairs caused appellant to fall is speculative. But it is more reasonable and probable inference that the unsafe factors identified by Avrit, including the lack of a handrail, were a substantial factor in appellant's fall than it is to infer that appellant would have fallen regardless of the condition of the stairs. (Leslie G., supra, 43 Cal.App.4th at p. 483, 50 Cal.Rptr.2d 785 [to defeat summary judgment, a plaintiff must show that the inferences favorable to her are more reasonable or probable than those against her]; Brautigam v. Brooks (1964) 227 Cal.App.2d 547, 556, 38 Cal.Rptr. 784 [an inference must be drawn from facts, and it cannot be based on mere possibility].) It is within common knowledge that safe riser heights and handrails help prevent stumbles, and handrails can prevent stumbles from becoming falls.

Respondent argues that it is just as likely that appellant's fall was caused by something other than the defects identified by Avrit. First, respondent suggests that appellant may have slipped on the bath mat around the base of the commode. But appellant testified that she was on the stairs and then woke up on the floor. There is no indication in her statement that she slipped while standing at the commode where the bath mat was located. It is not reasonable and probable to infer that appellant slipped on the bath mat given the absence of any evidence that it was located on the stairs. Second, respondent adverts to appellant's testimony that she may have slid on slippers. Notably, appellant testified that she did not know if she was wearing slippers, so her testimony on the point was equivocal at best. In any event, respondent ignores Avrit's explanation for how handrails prevent stumbles and falls. In our view, a reasonable trier of fact could infer that even if appellant had slid on slippers, a handrail would have prevented her from falling.

McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 120 Cal.Rptr.2d 23 (McGonnell) does not trigger a shift in our thinking. In that case, the threshold issue whether the decedent had been exposed to the defendant's asbestos. (Id. at p. 1103, 120 Cal.Rptr.2d 23.) In moving for summary judgment, the defendant relied upon the decedent's deposition testimony establishing that he had no knowledge of having had any exposure. The court concluded that this evidence showed that the wrongful death plaintiffs could not prove the causation element of their claim. (Id. at p. 1104, 120 Cal.Rptr.2d 23.) Simply put, McGonnell and appellant's case are not on equal footing. Here, there is evidence appellant was on dangerous stairs and fell. In McGonnell, there was no evidence that the plaintiff was exposed to the defendant's asbestos.

Respondent pushes back on this analysis and cites a trio of cases. Darrach v. Trustees of San Francisco County Medical Asso. (1953) 121 Cal.App.2d 362, 366, 263 P.2d 469 stated, " ‘No inference of negligence arises from the mere proof of a fall upon the stairway. "In order to impose liability on the owner it must be shown that a dangerous condition existed, and that the defendant knew or should have known of it. While under some circumstances, negligence may be inferred from the existence of a dangerous condition, the burden rests upon the plaintiff to show the existence of a dangerous condition, and that defendant knew or should have known of it." ’ [Citation.]" (Ibid.)

[289 Cal.Rptr.3d 373]

Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, 145, 229 P.2d 103 is an echo of the same rule of law, and Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826, 15 Cal.Rptr.2d 679, 843 P.2d 624 notes that the common wisdom from many jurisdictions declares "as a general rule that res ipsa loquitur does not apply to slip and fall cases." None of these cases are pertinent to our analysis because appellant offered evidence that the stairs were a dangerous condition. She does not suggest that her fall, by itself, proved that there was a dangerous condition.¹⁸

B. Smith Met His Initial Burden by Negating the Element of Causation

To meet his initial burden, Smith presented evidence that Nahabedian had no recollection of the incident or how it occurred and there were no independent witnesses to the incident. This evidence satisfied Smith's initial burden to negate the causation element of Nahabedian's negligence and premises liability claims. The burden shifted to Nahabedian to establish a triable issue of material fact on the cause of her injuries.

We are thus back to the basic rules for determining whether Nahabedian carried her burden to show a triable issue of material fact exists on causation. To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury. (Saelzler, supra, 25 Cal.4th at p. 778.) "[T]he plaintiff must establish by nonspeculative evidence, some actual causal link between the plaintiff's injury and the defendant's failure to provide adequate [safety] measures. [Citations.]" (Id. at p. 774.)

Smith rightly argues that Nahabedian's overwhelming hurdle in proving causation is the fact there are multiple alternative causation scenarios, and none is more likely than the other. "Where there is evidence that the harm could have occurred even in the absence of the defendant's negligence, 'proof of causation cannot be based on mere

Page 11

speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence. . . .' [Citation.] 'As Professors Prosser and Keeton observe, "A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." [Citations.]'" (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 (Padilla); Williams v. Wraxall (1995) 33 Cal.App.4th 120, 133 [defendant's conduct did not cause the harm where evidence shows only "'"a 50-50 possibility or a mere chance"' that the harm would have ensued"].)

The Padilla case is instructive on why Nahabedian cannot show a triable issue of fact on the issue of causation. Nahabedian acknowledges the significance of Padilla and Johnson v. Prasad (2014) 224 Cal.App.4th 74 (Johnson), both cases of child drowning where there were no witnesses or any direct evidence of how the child entered the pool area unattended. In both cases there was a dangerous condition on the premises - a door or gate leading to the pool area that did not self-close or self-latch, and the plaintiff sued the homeowner for premises liability, alleging the unsafe door or gate was a substantial factor in causing the drowning. In both cases, the trial court granted summary judgment for the defendant homeowner because the plaintiff failed to prove causation; only one of those decisions survived on appeal.

In Padilla, the appellate court affirmed summary judgment, finding the plaintiff failed to present any evidence the child entered through the unsafe gate - there were three possible entry points to the pool and it was purely speculative as to whether the child entered the pool area through the defective gate or through one of the other access points to the pool. Because "[t]he probabilities are evenly balanced" as to which entrance the child used, the appellate court held the plaintiff "cannot establish that [defendants'] failure to provide a self-latching gate was a substantial factor in causing [the child's] drowning." (Padilla, supra, 160 Cal.App.4th at pp. 752-753.)

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In Johnson, supra, 224 Cal.App.4th 74, the appellate court reversed a summary judgment for the homeowner, finding plaintiff had created a triable issue on causation. In Johnson, there was only one door through which the child could have entered the pool area, and that door did not have a self-closing, self-latching mechanism. The court explained: "Unlike [in] Padilla, there was no dispute" that the child entered the pool area through a door that lacked a "self-closing, self-latching mechanism." (Id. at p. 84.) Because the unsafe door was the only entry point for the pool area, the appellate court held a sufficient basis existed to infer the dangerous condition of the door was a substantial factor in causing the child's drowning and therefore the issue should go to the jury. (Ibid.)

In the instant case, Nahabedian did not present facts showing it is more likely she accidentally fell from the balcony than that she descended as a result of an intentional act. Like the plaintiff in Padilla, Nahabedian confronts alternative causation scenarios, all of which are equally probable. Consequently, she cannot show a triable issue of fact exists on whether the height of the railing was a substantial factor in causing her injuries.

Nahabedian contends the trial court abused its discretion in excluding the reports and declaration of her expert, Brad Avrit. The excluded evidence concerned Avrit's opinion that the height of the railing, below Nahabedian's center of gravity, was insufficient to prevent her fall and, thus, a substantial factor in causing her injuries.

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Because we have concluded as a matter of law that Nahabedian cannot prove she fell over the railing, evidence on why she fell is irrelevant. Consequently, the exclusion of this expert evidence is a moot point.

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) "The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence." (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

[A] " 'plaintiff must introduce evidence which affords a reasonable basis [*8]  for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' " [Citation].

(Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.) Moreover, an essential element of a cause of action for premises liability is that the premises owner knew, or reasonably should have known, about the dangerous condition on the premises. (See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.)

Here, the complaint alleges that "[o]n November 1, 2018 while [on Defendants' property], as a direct and proximate result of the negligence of Defendants, and each of them, Plaintiff sustained serious injuries and damages." (UMF 2.) On the day of the incident, Plaintiff recalls only paying rent, walking towards her car, and that she fell beside her car. (UMF 4.) Plaintiff did not look where she was stepping or walking when she fell, and Plaintiff has no memory regarding how she fell or what caused her to fall. (UMF 5-6.) Plaintiff does not know or remember if she had to step down to get to her car, or if she tripped on [*9]  a curb or steps. (UMF 7.) Defendants assert that Plaintiff provided no facts or evidence in written discovery to support her claim that Defendants were negligent, and that Plaintiff failed to identify the alleged dangerous condition on the property. (UMF 8-9.) Further, Defendants contend Plaintiff's recitation of the facts relating to her fall does not identify how she fell or the alleged dangerous condition. (UMF 10.)

Plaintiff claims she fell at the handicap parking spot, which is located in front of the main office at the property. (UMF 11.) The area where Plaintiff claims she fell is traversed daily by the property's residents, employees and visitors and is not covered or obscured in any way. (UMF 12.) Prior to Plaintiff's alleged fall, none of Defendants' personnel or employees observed any conditions in or around the area where Plaintiff claims she fell that presented any danger to people walking in the area, and prior to her fall, Plaintiff never complained to Defendants the area where she fell was in a dangerous condition. (UMF 13, 15.) Defendants further aver no one ever notified Defendants' employees or personnel of any dangerous condition where Plaintiff fell. (UMF 14.)

The complaint, thus, alleges Defendants were negligent in allowing a dangerous condition to exist on the property, and that [*14]  Plaintiff was injured by Defendants' negligence. The complaint is vague and ambiguous as to what the dangerous condition was that caused Plaintiff's injures. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 ["Ordinarily, negligence may be alleged in general terms, … [but] the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant's negligence has caused him injury.' [Citation]."].) However, in opposition, Plaintiff now seeks to clarify that the vague allegations in the complaint concerning the dangerous condition that caused her injuries relate to a purported non-compliant ADA ramp located next to a handicapped parking spot. While the allegations concerning the ramp were not included in the complaint, in the furtherance of justice and the liberal policy in favor of amendments, Plaintiff has shown sufficient grounds to amend her complaint to allege the dangerous condition on Defendants' property that caused her to fall.

The court may grant a party leave to amend a complaint at any time before judgment, including at a hearing for a motion for summary judgment. (Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 264, n. 8; see also Kirby v. Albert D. Seeno Const. Co. (1992) 11 Cal.App.4th 1059, 1069, n. 7.) In the absence of identified prejudice by Defendants, [*15]  the court will allow Plaintiff to amend her complaint in these circumstances to properly plead the allegations concerning the ADA ramp upon request at the hearing.[1]

Based on the foregoing, Defendants' motion, which has been transmuted into a motion for judgment on the pleadings, is granted with 10 days leave to amend. (CCP § 438(i); See Stolz v. Wong Communications Limited Partnership (1994) 25 Cal. App. 4th 1811, 1817; see also Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 536 [in ruling on a motion for summary judgment, "If the court finds that the pleading is insufficient, it has discretion…to grant the opposing party leave to amend."].)