Hotel bathtub slip-and-fall: previous accidents must be sufficiently similar to give innkeeper notice of dangerous product/condition

February 27, 2012
By Justice Steven Vartabedian (Ret.) on February 27, 2012 6:00 AM |

Hotel.jpgIn Howard v. Omni Hotels Management Corp. (filed January 11, 2012, certified for publication February 8, 2012) 2012 DJDAR 1786, plaintiff injured himself as a result of a slip and fall in the bathtub while staying at one of defendant Omni's rooms in San Diego. He sued Omni for premises liability and negligence; he also sued the bathtub manufacturer, Kohler, for negligence and strict liability. Both defendants succeeded on summary judgment; however, the trial court set aside the judgment in favor of Omni when it granted a motion for new trial on the grounds that there were triable issues of fact regarding the existence of constructive notice of an unreasonably dangerous condition concerning two previous bathtub accidents in another Omni hotel.

The Court of Appeal, Fourth Appellate District, Division One, affirmed as to Kohler and reversed as to Omni with directions to enter a defense summary judgment. Concerning the claims against Kohler, the court found that plaintiff failed to present a sufficient factual basis supporting the application of a higher safety standard for the bathtub than the industry safety standards as proven to have been exceeded by defendants. As to Omni, plaintiff failed to show that the asserted prior incidents were substantially similar.

The ruling in favor of Kohler illustrates that a plaintiff does not necessarily get past a summary judgment by presenting the declaration of a "dueling" expert. Here plaintiff presented its expert's opinion that a greater standard than the industry standard would be better. However, the appellate court agreed with the trial court that merely contraverting what was a better standard did not create a triable issue. Kohler's exceeding the industry standard creates a presumption of non-defect/due care unless plaintiff could show Kohler had knowledge of greater than the expected dangers that should have been addressed by a higher standard of design.

Another common misconception is that a prior accident of the same general nature puts a defendant on notice of the danger that caused a present accident. Here, Omni had experienced two prior bathtub accidents in one of its hotels across the country, in New Haven, Connecticut. But the evidence presented by plaintiff did not give any detail about the condition of the other bathtubs or the medical condition of the hotel guests who fell. Plaintiff had the burden to show sufficient similarity and the court here failed to find sufficient evidence that the plaintiff had done so. (See Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.)