Chandler v. Arizona Partners Retail Investment Group LLC

Full title: Kathleen CHANDLER, Plaintiff-Appellant, v. ARIZONA PARTNERS RETAIL…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 18, 2009

329 F. App'x 724 (9th Cir. 2009)

Opinion

No. 07-15175.

Submitted January 15, 2009.^_

_ The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2)(C).

Filed May 18, 2009.

James Joseph Lynch, Jr., Sacramento, CA, for Plaintiff-Appellant.

Claudia Jane Robinson, Esq., David S. Worthington, Esq., Lewis Brisbois Bisgaard Smith LLP, Sacramento, CA, Jesse J. Lad, Meyers, Nave, Riback, Silver Wilson, Oakland, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California, David F. Levi, District Judge, Presiding. DC No. CV 04-2218 DFL.

Before: HUG, REINHARDT, and TASHIMA, Circuit Judges.

MEMORANDUM^__

__ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Plaintiff Kathleen Chandler appeals the district court's judgment in favor of defendant Arizona Partners Retail Investment Group, LLC, following a jury trial on her negligence claim. Chandler also appeals the pretrial dismissal of her negligence per se claim. We have jurisdiction under 28 U.S.C. § 1291, and affirm.¹

1 Because the parties are familiar with the factual and procedural background, we recite it here only so far as is necessary to aid in understanding this disposition.

The district court did not err in dismissing Chandler's negligence per se claim. California has codified the common law rule on negligence per se, which allows a defendant's violation of a statute or regulation to create a presumption of negligence only if, inter alia, the "injury resulted from an occurrence of the nature which the statute . . . or regulation was designed to prevent. . . ." Cal. Evid. Code § 669(a)(3). Because the requirement set forth in the implementing regulations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., that "[b]uilt-up curb ramps shall be located so that they do not project into vehicular traffic lanes," 28 C.F.R. § 36, Appendix A, § 4.7.6, was not designed to protect against an occurrence such as the one at issue here, Chandler's negligence per se claim fails as a matter of law.

The district court similarly did not err in refusing to admit testimony about purported ADA violations. Chandler argued that the defendant acted negligently in painting a parking lot ramp in a confusing pattern, causing her to trip. However, because the ADA regulations at issue governed the location of ramps near traffic lanes, evidence of the ramp's supposed non-compliance with those regulations was irrelevant and properly excluded under Federal Rule of Evidence 402.

Finally, because, as discussed above, Chandler's negligence per se claim fails as a matter of law, she was not entitled to a jury instruction on negligence per se. See Akins v. County of Sonoma, 67 Cal.2d 185, 60 Cal.Rptr. 499, 430 P.2d 57, 61-62 (1967).

The judgment of the district court is AFFIRMED.