De Silva v. St. John's Catholic Cemetery

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ELVIRA CISNEROS DE SILVA, Plaintiff and Appellant, v. ST. JOHN'S CATHOLIC CEMETERY et al., Defendants and Respondents.

C096426

California Court of Appeals, Third District, San Joaquin

May 26, 2023

NOT TO BE PUBLISHED

Super Ct. No. STK-CV-UPl-2020-0004091

BOULWARE EURIE, J.

Walking through a 140-year-old cemetery on her way to a funeral plaintiff Elvira Cisneros De Silva was injured when a headstone struck her after someone fell onto it. Plaintiff sued the cemetery (St. John's Catholic Cemetery) and its owner (the Catholic Diocese of Stockton Cemeteries) (collectively defendant) - in this appeal - for damages alleging negligence in inspecting and maintaining the headstone that struck her. Plaintiff took the position defendant had a duty to physically inspect the headstone.

The trial court granted defendant's motion for summary judgment, reasoning defendant had no special relationship with plaintiff giving rise to a duty of care to her, and even if defendant did owe a duty of care to plaintiff, the circumstances surrounding the injury were unforeseeable. On appeal, plaintiff argues the trial court's reasoning was flawed. As we explain below, the trial court misconstrued plaintiff's argument and analyzed the defendant's duty of care on an inapplicable theory. Furthermore, a triable issue of material fact exists as to whether it was foreseeable that the headstone would fall when someone collided with it. Thus, the trial court's bases for granting summary judgment were flawed and, accordingly, we reverse.^[1]

BACKGROUND

Since its nineteenth century founding, the cemetery where plaintiff was injured has been owned and controlled by defendant and its predecessors in interest - the Roman Catholic Bishop of Stockton and the Archdiocese of San Francisco. As a "religious" cemetery, it is exempt from many of the laws governing cemeteries in the Health and Safety Code (see Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 201; Health & Saf. Code, § 8250 subd. (a)) and is not subject to the regulations and oversight of the Department of Consumer Affairs, Cemetery and Funeral Bureau, in any way material to the instant matter.

As plaintiff walked through a cemetery with family members on her way to a funeral in June 2018, a headstone struck her after a 400-pound woman, a relative of the plaintiff with a medical condition, lost her balance and fell onto it. The headstone marked the grave of a man buried in 2008. Defendant played no part in its purchase or installation, as the family that bought the headstone chose its design and materials, and selected the vendor who erected it. In the approximately 10 years following its installation, no defects in the headstone had been observed or reported.

In her complaint filed in 2020, plaintiff brought three causes of action against defendant: (1) res ipsa loquitor - a headstone would not fall "unless someone was negligent in inspecting, maintaining or repairing it"; (2) negligence - defendant had a duty to "inspect and make safe the [head]stones which they place[d] on their premises," and breached that "duty of care" to plaintiff; and (3) premises liability - defendant owned the subject premises, had "exclusive control over the maintenance of the [head]stone" that fell on plaintiff, and breached a duty to plaintiff by failing to discover that headstone was "unsafe."

During the 2021 deposition of the defendant's director of cemeteries, it was clarified that one does not buy a plot in a Catholic cemetery. One buys "a right to burial in a plot." Defendant's director explained that the duties of the cemetery's landscape maintenance employees include mowing grass, taking care of sprinklers, and looking for potential safety hazards like tree limbs hanging too low, in which case employees will remove the limb. Also, if during "normal maintenance" an employee "see[s] something that isn't correct," then they will "repair it, fix it, whatever the need is, without the charge to the family." If the problem, is "pertaining to the stone that belongs to the family," the cemetery will "take care of it" "depending on the situation"; sometimes the family "may not be visiting out there for many, many years. Others are there almost every day." For example, if a headstone is not sitting on its base properly, landscape maintenance employees will "straighten it out" and "put adhesive on it." If a granite vase has "broken off" or been "knocked over" employees will repair and reattach it.

But "if there's a significant issue with the [head]stone, like a chip on it" a family member will be contacted. Often the family member asks the cemetery," 'What do we do?' And then we'll refer them to their monument company to repair it," the cemetery director explained. "If there is a problem on the grave itself," by contrast, "like a sinking in one corner or whatever, then [the cemetery] automatically repair[s] that" as "part of . . . maintenance." The cemetery director estimated that in the previous five years, there was a total of "maybe four" toppled headstones in the four cemeteries defendant owns and operates.^[2]

Offering context to questions he was about to pose to the cemetery director, plaintiff's counsel explained that during discovery between the parties he received one document responsive to defendant's assertion it was not responsible for maintenance of the headstone that struck plaintiff. Plaintiff's counsel asked the cemetery director if he saw anything in that document "evidencing or referring to who was responsible for the maintenance of the headstone." The cemetery director replied, "No."

During discovery, defendant refused - absent a "release and authorization" from the family - to provide a copy of the contract between defendant and the family that purchased the headstone that struck plaintiff. It is unclear whether plaintiff ever obtained such a release and if defendant ever provided the contract. Defendant did apparently provide "exemplar documents" the contract was based on. Relatedly, and in response to defendant's interrogatories, plaintiff asserted that a member of her family was buried in the cemetery where she was injured, and "the contract between that family member and [d]efendant[] does not contain any provisions stating that the family is in charge of the upkeep or maintenance of the plot or the headstone."

Ultimately, defendant moved for summary judgment, arguing the res ipsa loquitor cause of action failed because it was undisputed the headstone was not within its exclusive control. Addressing the negligence and premises liability causes of action together and characterizing them as "intertwined," defendant argued it did not breach its "landowner duty" to plaintiff, because it had no actual or constructive knowledge the headstone that struck plaintiff was a dangerous condition: the cemetery had "an everpresent program of inspection and . . . had the . . . headstone constituted a dangerous condition," that would have become apparent. As a dangerous condition never became apparent, "there was no duty whatsoever for [the cemetery] to take action." And, defendant asserted, the proposition that "headstones . . . by just being present" can be "deemed dangerous conditions" "defi[es] common sense" and has "no supporting statutory or decisional law."

In opposition, plaintiff argued defendant had a duty to "perform physical inspections of headstones" because headstones had fallen on its property before, and it was "foreseeable that those attending defendant's property w[ould] come into contact with headstones and touch them." "[P]hysical inspection would have revealed the headstone at issue was loose and dangerous," plaintiff maintained. And once defendant knew the headstone was loose, plaintiff continued, it could have "resecur[ed]" the headstone to its base by applying adhesive compound. A properly secured headstone would have "easily withst[ood] a bump or even a fall from a 400-pound" person. And, plaintiff asserted, there was "zero evidence that anyone other than the defendant had the duty to maintain the headstone."

The trial court granted summary judgment, citing Brown v. USA Taekwondo (2021) 11 Cal.5th 204 (Taekwondo) for the proposition defendant had no special relationship with plaintiff giving rise to a duty of care to her. And even if defendant did owe a duty of care to plaintiff, the trial court reasoned, the facts and circumstances of the case were "an unforeseeable, independent, intervening and superseding cause" of plaintiff's injuries, requiring summary judgment under the reasoning of Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339. Plaintiff timely appealed.

DISCUSSION

A. Standard of Review

On appeal from the grant of a motion for summary judgment, we review de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. Summary judgment is proper only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of showing the plaintiff has not established, and cannot reasonably expect to establish, the elements of his or her cause of action. (Code Civ. Proc., § 437c, subd. (c); Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 253-254.)

B. Analysis

We agree with plaintiff that the trial court's reasoning was flawed. This is not a case where defendant's duty to protect plaintiff was conditioned on the existence of a special relationship between defendant and plaintiff. In this case, the question of whether it was foreseeable that...