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Does “not remembering an Incident” win an MSJ for Defense?

By Eric Ganci

In litigation, if Defense thinks Plaintiff filed a lawsuit against Defendant, and Defendant thinks with Plaintiff’s case there is “no triable issue as to any material fact”, Defendant can file a Motion for Summary Judgment. This is what Defendant filed in his January 21, 2022 Court of Appeal case Kaney v. Mazza (also published as Kaney v. Custance). Cited as 2022 WL 190648, from the California Court of Appeal, Second District, Division 2.

With an MSJ motion, Defendant must show “an element of a cause of action cannot be established by submitting evidence that the plaintiff does not possess, and cannot reasonably obtain, evidence supporting the element.” [A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof. Once the burden shifts, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” “Causation must be established by nonspeculative evidence.”

In citing other cases, the Court says “‘[n]o 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.’”

Now, what happened in this case: Plaintiff falls down Defendant’s stairs. Plaintiff injures herself and alleges she fell because Defendant’s stairs were not safe and did not include a handrail.

Plaintiff does not actually remember the fall and Defendant files a MSJ with the argument: if you can’t remember the fall, then there is no triable issue of fact.

The Trial Court agreed with Defendant: “The trial court concluded that appellant’s inability to remember the fall meant that she lacked nonspeculative evidence of causation.”

However, the Trial Court was wrong. “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.”

The Court reasons: “[i]t is true that a handrail (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.”