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BWB&O Attorneys John Toohey and Carter Henry Won Their Motion for Summary Judgment Based on Actual and Constructive Notice!

John Toohey and Carter Henry

Bremer Whyte Brown & O’Meara, LLP is excited to share that Newport Beach Attorneys John Toohey and Carter Henry recently won their Motion for Summary Judgment based on Actual and Constructive Notice.

BWB&O’s Client is a private landowner in Los Angeles and was sued in an action for negligence and premises liability predicated on alleged unsafe conditions on the roof of our Client’s property.  At the time, the property was leased to the Co-Defendant tenants who hosted a party on the roof of the property with several guests. The tenants, and their guests, accessed the roof by sawing through metal security bars blocking a skylight from within the unit.  At the end of the night, the Plaintiff unfortunately fell off the edge of the roof and suffered severe injuries. The Plaintiff alleged that our Client was at fault for failing to keep the premises in a reasonably safe condition and failing to warn of or remedy the unsafe condition of the exposed edge of the roof.

As the Plaintiff did not remember the incident, John and Carter obtained testimonial evidence regarding our Client’s knowledge of the alleged unsafe conditions at the property from each party and witness involved. It became abundantly clear that our Client was never put on notice of the unsafe conditions on the roof, namely the tenants’ access to the roof.  Likewise, our Client and his employees did not know of the tenants’ access to the roof, or the removed metal security bars, at any time until after the incident. We filed our Motion for Summary Judgment as to the entire complaint asserting, through uncontroverted evidence, that (1) our Client did not have actual or constructive knowledge of the alleged unsafe conditions at the property, and (2) the open and obvious nature of the alleged unsafe condition obviated our Client’s duty to warn and remedy.

The Court thoroughly examined the controlling judicial authorities agreeing that our Client did not have a duty to warn the Plaintiff or remedy the condition as the Plaintiff did not show why the tenants, and their invitees, would “choose to encounter” the open and obvious danger of the exposed edge of the roof.  As such, the tenants’ access to the roof was not foreseeable and our Client did not have actual or constructive notice that the tenants, or their guests, would access the roof. In so doing, the Court ruled in our Client’s favor and granted Summary Judgment.