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Marquez v. Mainframe2/16/1996
SMITH, J.
Plaintiff Jorge Marquez, a private security guard who slipped and fell while patrolling a building leased, operated and maintained by defendants Visa International and Visa USA (collectively Visa) and Mainframe, appeals from a summary judgment granted in defendants' favor. The trial court ruled that plaintiff's claim for personal injury was barred by "primary assumption of the risk" as defined in the California Supreme Court case of Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight). We disagree and will reverse.
BACKGROUND
We summarize the undisputed facts as set forth in the summary judgment papers. On September 21, 1992, plaintiff was making his rounds while patrolling a building leased and occupied by defendant Visa in the course of his employment as a security guard for Pinkerton Security. Plaintiff's duties included patrolling the parking area and internal floors, responding to alarms, providing escorts for Visa personnel, and assisting in fire emergencies. Part of his duties included looking for any safety hazards and reporting them so that the maintenance crew could take remedial action.
On the night in question, plaintiff was making a round toward the end of his shift and engaging in part of his normal routine, which would be to turn on the lights in the generator room and inspect it. Plaintiff opened the door to the darkened room, took two steps forward and lost his footing, falling to the ground. He got to his feet, turned on the light and noticed that the floor of the generator room had a small puddle of standing water, which was streaked out in several directions. There was evidence that the water came from condenser water pipes in the "chiller plant" which operates 24 hours a day in the generator room. There was also evidence that Visa had prior notice of standing water in the room, presenting a safety problem. Defendant Mainframe had contracted with Visa to provide maintenance services for the room, which services included occasionally mopping the floor.
Plaintiff filed a complaint for personal injuries suffered as the result of his slip and fall, based on negligence and premises liability of the defendants. Visa and Mainframe each moved for summary judgment on the ground that plaintiff's cause of action was barred by the doctrine of primary assumption of the risk and the firefighter's rule as articulated by the California Supreme Court in Knight.
Finding that plaintiff's job responsibilities included "looking for and reporting safety hazards such as the water on the floor in this case," the trial court found that plaintiff's claim was barred by Knight and granted the motions. This appeal ensues.
APPEAL
A defendant may show entitlement to summary judgment either by showing one or more elements of each cause of action cannot be established, or by establishing an affirmative defense. (Code Civ. Proc., ยง 437c, subd. (n).)
"here is no discretion to be exercised by a trial court in considering a motion for summary judgment. . . ." ( Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505, 1515 [285 Cal. Rptr. 385].) Accordingly, on appeal of a summary judgment the proper standard is independent review--we examine the facts as presented to the trial court on a summary judgment motion and independently determine their effect as a matter of law. ( Donchin v. Guerrero (1994) 34 Cal. App. 4th 1832, 1837 [41 Cal. Rptr. 2d 192]; Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App. 3d 1071, 1083 [258 Cal. Rptr. 721].)
In Knight, the California Supreme Court announced abolition of the concept of secondary or implied assumpti
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