California Appeals Court Allows Injured Worker's Lawsuit Against City of Berkeley to Proceed

Trial judges are continually performing a balancing act.  On the one hand, they must keep their dockets under control by speeding up the resolution of cases.  On the other hand, they understand that litigants, as a rule, deserve an opportunity to formally present witnesses and other evidence to support their legal claims and defenses.

 The purpose of a trial is to have a judge or jury decide what the facts are.  But if the key facts cannot be reasonably questioned, there is no need for a trial. If a party, plaintiff or defendant, believes that the uncontested and dispositive facts, together with the relevant law, are squarely on their side, they can file a motion for a summary judgment in their favor – that is, request a decision on the merits of their case without a full trial.  

Such a move, however, can backfire.  Let’s say the plaintiff doesn’t seek a summary judgment but the defendant does.  The judge could agree that the facts are clear-cut, but toss the defendant’s case instead. Because a summary judgment denies one side its day in court, appellate judges look benevolently at the evidence supporting the losing party and resolve doubts concerning such evidence in that party's favor.

 A California case illustrates a situation where an injured worker was unsuccessful in persuading a judge that he had a credible claim for holding a city culpable.  Despite the evidence stacked (literally, as shall be seen) in his favor, his case was thrown out by way of summary judgment.  A second look by an appeals court showed why the trial judge got things very wrong and why the worker’s lawsuit should proceed.  

The city of Berkeley, Calif., hired Universal Building Services and Supply Co. (UBS) to provide janitorial services at a city-owned building at 1947 Center Street. Miguel Angel Perez, a UBS employee who worked as a nighttime janitor at the property, was responsible for cleaning the building's upper floors and part of the basement.  A co-worker handled the rest of the building.  

As part of his duties, Perez collected trash in a large metal cart, which he brought to the ground floor.  From there, he would descend a ramp and move the cart through a corridor and past an exit door to reach the disposal bins outside the building.

On September 16, 2016, while moving the trash cart in the corridor, Perez slipped on broken glass shards. He fell, hitting his head against stacked recycling bins lining the corridor, and the bins fell on him. He lost consciousness for at least five minutes and was trapped, unable to move from the weight of the bins. As a result, he sustained severe injuries, incurred lost earnings, and was not able to return to work or be gainfully employed.

Perez filed suit against the city in Alameda County Superior Court, asserting several claims including negligence and allowing a dangerous condition on public property.  His  complaint alleged that when he slipped and fell in the Center Street property, the trash corridor

was lined with "unstably stacked blue recycling bins filled to capacity" and the floor was strewn with glass and other debris.  As the area was windowless and dimly lit, he unknowingly stepped on the broken glass, causing his foot to slip and leading the "already unstable stacked recycling bins to fall on him and pin him to the ground."

The city filed a motion seeking summary judgment in its favor on all elements of Perez’s complaint. The city argued that Perez could not prove that the city's property constituted a dangerous condition or that the city created the dangerous condition or knew about it.  In particular, the city contended that the small shards of glass which caused Perez to slip and fall did not pose a substantial risk of injury to someone exercising the care that an ordinarily reasonable person would use under similar circumstances.  Moreover, the city asserted there was no evidence that it created the glass shards on the floor or that it ever knew or should have known about them.

Perez responded that his case went well beyond the glass shards.  To prove the dangerous condition, he proffered evidence of bulky wheeled trash bins stacked on top of each other in a narrow, darkened trash corridor strewn with other debris. He further argued that city employees had carelessly stacked the carts in the trash corridor, and thus the city certainly knew or had reason to know of the corridor's dangerous condition.  In fact, Perez challenged all but two of the 16 facts the City claimed were undisputed.

Following a hearing, the trial court granted the city's motion.  In essence, the court found that none of the evidence Perez presented – through depositions and other sworn statements together with documentation produced in discovery – was legally sufficient to support his dangerous condition claims.

The judge found that the shattered glass was the proximate cause of Perez's injury but that the city had neither actual nor implied notice of the glass, adding: “Assuming the city did have notice, the Court finds the risk posed by the shattered glass and stacked bins was minor."  The court also granted summary adjudication of all other claims, reasoning that a public entity cannot be sued for negligence arising from the physical condition of public property in a premises liability case.  

On appeal, Perez abandoned the negligence allegations and pursued only the dangerous condition claim.  He argued that summary judgment should be reversed because he presented ample evidence that the city both created the dangerous condition and knew about it for months. 

The three-judge appellate panel agreed. “We readily conclude Perez presented enough evidence to create a triable issue of fact as to whether the City had actual or constructive notice of the dangerous condition of the trash corridor,” the panel wrote.  Indeed, the justices had plenty to find when they examined the trial court record.

Under California law, to succeed against a public entity for a dangerous condition, a plaintiff must show either (a) that the condition was due to a negligent or wrongful act or omission by the entity’s employee or (b) that the entity knew or should have known of the dangerous condition a sufficient time prior to the injury to have taken protective measures.

The trial judge was presented with photographic evidence of stacked, wheeled garbage and recycling bins in the trash corridor.  The day after the accident a UBS safety coordinator prepared a memo, noting that the "[t]he area [was] crowded with trash barrels stacked up on two tiers and the two trash bins [were] located at the end of the storage room making difficult to dispose the trash into it."  Perez also submitted the sworn statement of Andreina Quiroz, another janitor at the Center Street property, who testified that throughout the summer of 2016, "there were two-wheeled trash carts in the trash corridor" which "had been stacked two high and two deep," adding this was "a common occurrence." The record also included deposition testimony from Perez and Quiroz that the stacked trash carts were partially full or full.

Additional evidence included testimony from Quiroz that "[d]ue to the narrowness of the trash corridor and the amount of waste carts lined up [there], [she] had to navigate the trash corridor walking backways pulling the employee trash cart."  She further testified that, before Perez’s injury, there had been an occasion when the carts nearly fell on her.

Evan Lane, a paramedic who responded to Perez's 911 call the night of his fall, stated that the corridor presented “unsafe conditions.”  The lighting was “dim inside" the "tunnel," and he recalled needing flashlights to provide aid to Perez.  He also noted that the passageway for walking was "narrow," adding: “You don't want to stack trash bins with wheels on top of each other, especially if they're full of stuff."  As if to corroborate Lane’s remarks, Phillip Harrington, the city’s public works director, testified in deposition: "I don't believe lifting and stacking any type of loaded cart on top of another cart is a safe practice." 

Indeed, city officials knew about problems in the trash corridor at least two months before Perez was injured. Early July 2016 e-mails from Roger Rushing, a city building inspector, to a public works distribution list mention that during his daily inspection of remodeling at the Center Street property, he ended up moving a blue trash bin to the basement and "[w]hen [he] got to the loading dock the entire corridor was filled with empty blue containers. On the right side of the corridor the containers are stacked 2 high 2 deep."

Notably, Rushing stated that "facilities maintenance . . . use this access way to the freight elevator" and that "[i]n order to clear the path to the rollup door [he] had to stack additional carts again high and 2 deep further back in the access corridor." In that e-mail, he asks who is responsible for "removing surplus wheeled bins" and "for keeping the access to the freight elevator clear."

 On August 19, 2016, he sent a follow-up e-mail with the added information that the garbage bins at the end of the corridor were inaccessible to janitorial staff. He counted "39 paper bins lined up in the corridor, 10 of which [were] full of paper and cardboard," noting that "nothing can come in and nothing can go out at this time."

"I'm sure there are plenty of people who know the condition exists, but either aren't complaining or are just throwing up their hands in frustration," his email continues.  He pleaded with public works staff to "reduce the number of bins in the corridor so that full ones can be accessed and emptied" and "maintain the aisle way so that the corridor can be used other than a parking lot [for] full and empty blue cans."  

The distribution of this e-mail included additional city employees including the 1947 Center Street property manager, the facility maintenance superintendent, a city project manager, and Harrington, the public works director. At his deposition, Harrington admitted that he was "aware of issues, potential issues regarding the carts . . . in the basement area of 1947" from June through September 2016. The record also included deposition testimony from a city worker who recalled seeing stacked trash carts in the Center Street property and who had been asked to have his staff empty the containers in the trash corridor "because they were complaining that all of the containers were full and needed to be serviced."  

Lest any doubts remain about the city’s awareness of the problem, the appeals court noted an email from the project manager to the Center Street property manager, dated August 31, 2016, with the subject "Garbage and Recycling at 1947" which stated: "I realize you know about this already. It's getting out of hand and needs to be addressed."

The city’s attorneys presumably would have tried to undermine or downplay the formidably damaging testimony and exhibits through cross-examination at depositions or with pushback by other means, but they apparently failed to illicit any concessions or to otherwise make any headway in poking holes in the plaintiff’s case.  

 “The evidence permits a reasonable person to conclude the City had actual notice of it and sufficient time prior to Perez's injury to have taken measures to protect against the dangerous condition,” the panel continued. “Accordingly, we conclude a triable issue of material fact exists as to whether the City had, at minimum, actual notice of the dangerous condition in the trash corridor necessary for dangerous condition liability.”  *  *  *  [T]he evidence was sufficient to show the trash corridor was a crowded mess that made it difficult and dangerous for janitorial staff to carry out their job duties. *  *  *  [B]ased on the evidence presented a [judge or jury] could reasonably infer the City's awareness that the trash corridor was in a state of general disorder and disarray (including the presence of debris) in the summer of 2016.”

Perez v. City of Berkeley, No. A164842, Cal. Ct. App., First Dist., Aug. 4, 2023.