FILED

NOT FOR PUBLICATION

MAR 22 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLEN SASSOON, No. 14-55538

Plaintiff - Appellant, D.C. No. 2:13-cv-03233-RGK-E

v.

MEMORANDUM*

LOWE’S HOME CENTERS, LLC,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted March 10, 2016** Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

Glen Sassoon appeals from the district court’s summary judgment in favor

of Lowe’s Home Centers, LLC. We have jurisdiction under 28 U.S.C. § 1291.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Because the parties are familiar with the facts of this case, we do not repeat them

here.

1. “It is well established in California that although a store owner is not an

insurer of the safety of its patrons, the owner does owe them a duty to exercise

reasonable care in keeping the premises reasonably safe.” Ortega v. Kmart Corp.,

36 P.3d 11, 14 (Cal. 2001); see also Cal. Civ. Code § 1714(a). While a property

owner must give warning of a “latent or concealed” danger, an owner “is not liable

for injury to an invitee resulting from a danger which was obvious or should have

been observed in the exercise of reasonable care.” Beauchamp v. Los Gatos Golf

Course, 77 Cal. Rptr. 914, 919-20 (Ct. App. 1969) (quoting Florez v. Groom Dev.

Co., 348 P.2d 200, 204 (Cal. 1959)). In such situations, the obvious condition is

itself the warning. See Christoff v. Union Pac. R.R. Co., 36 Cal. Rptr. 3d 6, 13 (Ct.

App. 2005) (finding that “the presence of railroad tracks is a warning of an open

and obvious danger”).1

Construing the facts in the light most favorable to Sassoon, no reasonable

jury could find that the danger was not obvious. See, e.g., id. at 13-14 (affirming

grant of summary judgment where the danger of walking next to train tracks was

1 As Sassoon failed to raise the issue of whether the district court abused its discretion by excluding certain expert testimony, he has now waived it. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003).

2 obvious, and as such did not present a question of fact for a jury regarding

defendant’s duty to warn); Danieley v. Goldmine Ski Assocs., Inc., 266 Cal. Rptr.

749, 755-58 (Ct. App. 1990) (granting summary judgment and finding there was

no duty to warn a skier that a tree at the edge of a ski run presented the danger of

collision). Here, due to the considerable size of the ladder and its position in the

middle of the aisle, no reasonable jury could find that it was not obvious. As such,

Lowe’s was under no duty to warn Sassoon about the placement of or the danger

from the ladder.

2. Though a landowner may not have a duty to warn of an obvious danger, a

landowner may still have a duty to remedy the danger if it was foreseeable that the

danger may cause injury. See Krongos v. Pac. Gas & Elec. Co., 9 Cal. Rptr. 2d

124, 127-28 (Ct. App. 1992). “[I]t is foreseeable that even an obvious danger may

cause injury, if the practical necessity of encountering the danger, when weighed

against the apparent risk involved, is such that under the circumstances, a person

might choose to encounter the danger.” Lopez v. Superior Court, 52 Cal. Rptr. 2d

821, 828 (Ct. App. 1996) (quoting Krongos, 9 Cal. Rptr. 2d at 127). Under

California law, “the question of ‘duty’ is decided by the court.” Ballard v. Uribe,

715 P.2d 624, 628 n.6 (Cal. 1986); see also Ellison v. Shell Oil Co., 882 F.2d 349,

352-53 (9th Cir. 1989).

3 Here, Lowe’s had no duty to remedy the obvious danger of the placement of

the ladder. Though the ladder was placed in the middle of the aisle, the facts taken

in the light most favorable to Sassoon indicate that there were nineteen inches of

clearance on either side of the ladder. As there was unobstructed space around the

ladder, it was not foreseeable that the ladder would cause injury to a person

walking through the aisle. Further, a Lowe’s customer would not be forced to

encounter the ladder; in addition to walking within the clearance, a customer could

walk through a different aisle. Cf. Martinez v. Chippewa Enters., Inc., 18 Cal.

Rptr. 3d 152, 155-56 (Ct. App. 2004) (holding that there may have been a duty to

remedy a wet sidewalk that was the “principal” access to a public building, thus

predictably attracting pedestrian use, where the alternative would likely be to walk

in the gutter).

3. We deny Lowe’s request for dismissal of this appeal or other sanctions.

While Sassoon did not fully comply with Federal Rules of Appellate Procedure 28

and 30, his violations were not so numerous and egregious as to prevent this court

from learning the relevant facts and law or to substantially waste the court’s time.

See Dela Rosa v. Scottsdale Mem’l Health Sys., Inc., 136 F.3d 1241, 1242-44 (9th

Cir. 1998) (order) (declining to impose sanctions even where the excerpts of record

4 were “utterly useless”); cf. Cmty. Commerce Bank v. O’Brien (In re O’Brien), 312

F.3d 1135, 1136-37 (9th Cir. 2002) (order). However, we reiterate that “attorneys

should accept the responsibility of presenting an appeal of professional quality,

which necessarily includes full compliance with the rules of court for the Ninth

Circuit. We expect and will accept no less.” Dela Rosa, 136 F.3d at 1244.

AFFIRMED.

5

FILED

Sassoon v Lowe’s Home Center LLC 14-55538

MAR 22 2016

Reinhardt, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with the majority that the ladder was an open and obvious danger, but

disagree that it is not foreseeable that a customer may trip on the bottom corner of a

large ladder left in the middle of the aisle. Accordingly, I dissent.

Even if there is an open and obvious danger, a landowner may still have a duty

to remedy that danger if it is foreseeable that someone could be injured by it. Krongos

v. Pac. Gas & Elec. Co., 7 Cal. App. 4th 387, 393 (2009). Here, there was a large

ladder in the middle of a narrow aisle that employees and customers regularly passed

through. King, the Lowe’s employee who led Sassoon through the aisle, said that he

had never seen a ladder left in the middle of an aisle in the five years that he had

worked at Lowe’s and that it was common sense not to leave a ladder there. This case

shows why it was common sense not to do so. King told Sassoon to follow him

through the aisle, and Sassoon, naturally, was concentrating on following him. As

Sassoon passed through the aisle, his foot caught on the bottom wheel of the ladder,

and he broke his small toe. As evidenced by the facts in this case, it is foreseeable that

the type of injury that Sassoon suffered may occur when a store, such as Lowe’s,

leaves a large ladder in the middle of an aisle.

The majority concludes the opposite, contending it is not foreseeable that a

Page 1 of 3 customer, like Sassoon, would encounter the ladder, because he could walk around it

or use a different aisle. First, it is foreseeable that customers squeezing through a foot

and a half of space may trip on a bottom corner of the ladder blocking their way.

Moreover, at busy times, two customers may have to squeeze through that small

space, either both going the same way or one going one way and one the other,

making it not only foreseeable but highly likely that sometime during the day some

customer will collide with the bottom of the ladder. Second, contrary to the majority’s

reasoning, it is unreasonable to expect a customer who is being directed by a store

employee through an aisle to stop following the store employee and use a different

aisle when he spots the ladder. Especially in a store such as Lowe’s in which

customers often rely on store employees to show and to explain to them the location

of various products, it is foreseeable that a customer, like Sassoon, will follow an

employee who is helping him. In sum, because leaving a large object in the middle

of an aisle at a store (“the category of negligent conduct at issue”) is “sufficiently

likely to result” in a customer tripping on the large item while following a store

employee (“the kind of harm experienced”), I would hold that Lowe’s has a duty to

remedy this type of hazard, Ballard v. Uribe, 715 P.2d 624, 628 n.6 (Cal. 1986), and

that it is a jury question whether Lowe’s breached its duty given the facts of this

particular case.

Page 2 of 3 California’s Supreme Court observed some time ago that “[t]here are many

cases involving accidents in mercantile establishments where the question of

plaintiff’s contributory negligence has been held to be a question for the jury even

though the plaintiff failed to observe what may have been an obvious danger.” Laird

v. T.W. Mather, Inc., 51 Cal.2d 210, 217 (1958); see also Beauchamp v. Los Gatos

Golf Course, 273 Cal. App. 2d 20, 35 (Ct. App. 1969) (whether plaintiff was

reasonable in encountering risk of wearing worn down golf spiked shoes on smooth

concrete is a question for the jury). More recently, the state supreme court renewed

its warning against “effectively eliminat[ing] the role of the jury in negligence cases

[by] transforming the question of whether a defendant breached the duty of care under

the facts of a particular case into a legal issue to be decided by the court under the

standard of care rubric.” Lugtu v. California Highway Patrol, 26 Cal. 4th 703, 724

n.13 (2001). In deciding a disputed issue in this case about the particular factual

circumstances of an “accident[] in a mercantile establishment,” the majority fails to

heed the California Supreme Court’s warning and improperly deprives Sassoon of a

jury trial. Because this case should be resolved by a jury, I would hold that the district

court erred in granting summary judgment for the mercantile store.

I dissent.

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