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Dorsey v. 99 Cents Only Stores10/31/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Virginia Dorsey tripped and fell over a step inside a store owned and operated by defendant 99 Cents Only Stores, Inc. Dorsey sued for negligence and premises liability. Following a jury trial, judgment was entered in favor of Dorsey. On appeal defendant asserts that the six-inch step constituted an open and obvious condition or was at least a trivial condition, as a matter of law. We find that it was neither. We additionally reject defendant's contention that the judgment should be reversed based upon the doctrine of primary assumption of the risk. Defendant also makes various assertions of error regarding the admission of certain photographs, the testimony of plaintiff's expert witness, and the display of a sample step. None of defendant's overruled evidentiary objections had merit. Defendant also contends jury misconduct, but it failed to provide an adequate record demonstrating the purported error. Finally, defendant asserts the damages were excessive as they were purportedly based on an improper estimate of plaintiff's economic damages. Defendant's attorney however consented to the introduction of the estimated amount into evidence. In summary, we disagree with all of defendant's arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The 99 Cents Only Store opened in Whittier on June 24, 1999. The store is required to keep hourly safety inspection reports on file. The store's policy is to keep all areas free of potential hazards and to rectify any safety hazards at once.
The Whittier store has four westerly facing displays such as the one where plaintiff tripped and fell. Each display is approximately 12 feet tall and 10 feet wide, with three walls of full windows. The store's policy is to stack goods from the floor of the display until midway to the ceiling. The floor tile in front of each display is white with blue diagonal stripes. There is a six-inch step in front of each display. The pattern of the floor tile on top of the step also contains blue diagonal lines. Defendant's building supervisor testified when the store first opened he placed yellow duct tape on all of the steps inside the store. He stretched the tape across the entire length of the top of each step and folded it over the side a little. He inspected the Whittier store monthly. It was his responsibility to replace any worn tape. He did not do so between when the store opened on June 24, 1999, and September 30, 1999, the date of plaintiff's fall.
Plaintiff, Virginia Dorsey, went shopping for paper towels at the Whittier 99 Cents Only Store in the late afternoon of September 30, 1999. She took a shopping cart and walked up and down the aisles until she spotted the paper towels on a table within a display window to her left. She testified that, although sheet-like cloths were hanging from the windows, some sunlight still came in through the windows. Plaintiff turned toward the paper towel display, took one step toward it, and fell face down. She did not see the step before falling. As she was helped up by others, she saw the step. Plaintiff testified that a photograph identified as exhibit one accurately depicted the condition of the step. She testified the rubber on the step was torn as depicted in the photograph. She remembered seeing something yellow on the side of the step. " t was hanging. I
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