While taking a shower at the Sofitel Hotel in Beverly Hills, California, Monique Howard’s hand-held shower wand broke, cutting her hand, causing her to fall on her back, and leaving her with severe injuries. She sued Accor Management US, Inc., which managed the hotel at the time, and her complaint implicated the housekeeper who had cleaned her room that morning. Accor moved for summary judgment, which was granted by the trial court, a ruling that was later affirmed on appeal.

Howard’s complaint was based on her belief that when she took a shower earlier in the day, everything was working just fine. But after returning from shopping with her boyfriend and noting that her room had been cleaned, she took another shower. Her complaint alleged that the housekeeper must have broken the shower wand and failed to report it. Howard’s case rested on two legal theories. First, she included a declaration by Brad P. Avrit, an expert witness who concluded that the housekeeper must have broken the shower wand. Second, she argued that the legal doctrine of res ipsa loquitur applied. This doctrine is Latin for “the thing speaks for itself.”

Los Angeles County Superior Court Judge Jill Feeney did not agree, finding Howard’s arguments “contain(ed) conclusions that lack foundation and which are speculative in nature.” Howard appealed, and a unanimous three-justice panel from Division Eight of the Second District Court of Appeal affirmed Judge Feeney’s ruling on March 13. The opinion was originally unpublished but was certified for publication on April 3. The Fourth District Court of Appeal opinion was authored by Justice John Shepard Wiley Jr., with concurrences by Presiding Justice Maria E. Stratton and Associate Justice Victor Viramontes.

Justice Wiley wrote that the trial court was correct because “The evidence did not establish a triable issue of material fact as to Accor’s notice of a flaw in the shower wand.” He explained that the law requires a “property owner to have actual or constructive notice of an unsafe condition before incurring liability.” The appellate court was also not persuaded by any of Howard’s four arguments that explained why she believed summary judgment was inappropriate.

Howard had argued that there were triable issues of fact about the unsafe shower wand, whether the hotel had conducted a proper inspection of the wand, whether res ipsa loquitur applied, and whether Judge Feeney abused her discretion when she disregarded the opinion of Howard’s expert. Her first two issues were quickly rejected because they had not been raised in the trial court. In fact, the opinion said that Howard’s arguments contradicted themselves. First, Howard said the housekeeper broke the shower wand and did not tell anyone. However, this theory is not consistent with another argument that said the wand had broken at an earlier time but was not discovered because Sofitel failed to conduct adequate inspections.

Wiley then turned to the issue of notice where he pointed out Howard’s fatal argument flaw. Howard claimed there was only one “reasonable inference,” that being the housekeeper did something to break the wand. The appellate court was not persuaded, saying, “Howard’s problem is nothing shows the housekeeper did anything to break the shower wand. The evidence does not show the housekeeper was required to use the wand. There was no evidence from the housekeeper, as Howard decided not to depose her.” Howard also failed to provide hotel policy about when shower wands should be cleaned.

Accor’s engineers also testified that they had inspected the shower, performed “preventive maintenance” and found no issues with the shower fixtures. For all these deficiencies, Wiley found no triable issue of fact and said that Howard’s arguments “contained many leaps of logic.” He also pointed out that there were several alternative explanations for the shower wand’s breakage. As a result, there was no credible evidence to show that Howard herself had not caused the shower head to collapse.

Wiley next reviewed the expert testimony by Avrit, which was the basis of Howard’s charge that Feeney abused her discretion when she disregarded most of his opinions. The appellate court’s opinion outlined several reasons why the trial judge “did not exceed the bounds of reason.” These included the fact that Avrit never spoke with the housekeeper; failed to examine the hotel room until a year after the incident; never explained what was different during Howard’s shower; did not inspect the shower wand but relied instead on pictures; failed to adequately identify the type of plastic in the Sofitel wands; and gave too much credence to statements by Howard and her boyfriend.

For all these reasons, the opinion upheld the summary judgment, concluding, “Trial courts have a duty to act as gatekeepers. They must exclude speculative expert testimony. This court’s decisionmaking (sic) was not an abuse of discretion.”

Howard’s final problem was not meeting her burden to establish res ipsa loquitur, which Wiley explained, “applies when the nature of an accident compels the conclusion it probably resulted from the defendant’s negligence.” He wrote that the doctrine has three requirements: the type of accident usually results from someone’s negligence; “the harm was within the defendant’s control: and, the plaintiff did not voluntarily contribute to the harm.” The first two elements, Wiley noted, are missing here. The facts of this case also distinguished Howard’s situation from all the precedents she cited.

For all these reasons, the opinion concluded, “summary judgment was proper,” and costs were awarded to Accor.