Lead Opinion
Opinion
Gilardo C. Alcaraz was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. The cover of the meter box either was broken or missing. He sued his landlords, but the superior court granted summary judgment for defendants because the meter box was not located on defendants’ property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants’ property line.
For the reasons that follow, we affirm the Court of Appeal’s ruling that the superior court erred in granting summary judgment for defendants,
I
On April 17, 1991, Gilardo C. Alcaraz filed a complaint against the owners of the rental property of which he was a tenant, located at 141-147 Lincoln Avenue in the City of Redwood City (the city), alleging he had suffered personal injuries. In an amended complaint, he alleged that on the evening of April 17, 1990, he was injured when he stepped into a utility meter box embedded in the lawn next to the sidewalk in front of the building in which he was renting an apartment. Plaintiff alleged that defendants had actual notice that the cover to the utility box either was broken or missing.
On November 12, 1993, defendants filed a cross-complaint against the city and its water department, alleging that cross-defendants owned and maintained the meter box into which plaintiff had fallen and knew, or should have known, of its dangerous condition.
Defendants thereafter filed a motion for summary judgment on the complaint, asserting they owed no duty to plaintiff because they did not own either the meter box or the land upon which it was located. The evidence offered in support of the motion for summary judgment included a declaration from Jon Lynch, senior civil engineer for the city, stating that the meter box was located within a 10-foot-wide strip of land owned by the city that extends from the curb of Lincoln Avenue to defendants’ property line, encompassing the sidewalk and an additional approximately 2-foot-wide strip of lawn area adjacent to defendants’ property line. The closest edge of the meter box was one foot from defendants’ property line. Attached as an exhibit to the declaration was a copy of a page from the city’s utility block book showing that the meter box was located within this 10-foot-wide strip of land owned by the city.
Defendants also offered in support of the motion the declaration of a licensed land surveyor, John May, who stated that he had conducted a survey
In his opposition to defendants’ motion for summary judgment, plaintiff maintained that defendants were responsible for his injuries because they “either own a portion of the property on which the meter box is located, .. . or more importantly, defendants maintain and control the subject premises.” Plaintiff submitted photographs of the premises where the accident occurred and excerpts of a deposition of defendant Peter Vece, to establish that (1) prior to and at the time of the accident, defendants maintained the entire lawn from the front of the apartment building to the sidewalk, including that portion of the lawn that lies on the strip of land owned by the city, and (2) subsequent to the incident in question, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the approximately two-foot wide portion of the strip of land owned by the city lying between the sidewalk and defendants’ property line.
In addition, plaintiff submitted the declaration of Stephen Amer, a neighbor who resided in the same building at the time of the accident. The declaration stated that, on several occasions, Amer had informed both defendant Vece and “various ‘Water Company meter readers’ ” that the cover of the meter box either was broken or missing. Plaintiff also submitted the declaration of Stanley Gray, a licensed land surveyor, who stated that he had conducted a survey of defendants’ property and concluded “that the southerly right-of-way line of Lincoln Avenue, Redwood City, California cannot be ascertained within standard accuracy (1:10,000). Making an absolute statement about this boundary line is an impossibility as no recoverable monuments were set in 1902 within the subdivision. I found a variation of professional opinions in a total range of nine inches. It is reasonably probable, therefore, that the subject water meter box is not entirely located on property owned by the City of Redwood City, but rather a portion thereof may be located inside the property boundaries of 141-147 Lincoln Avenue, Redwood City, California.”
The superior court granted defendants’ motion for summary judgment, issuing a written opinion concluding that no triable issues of fact existed,
The Court of Appeal reversed the summary judgment rendered by the superior court. The appellate court agreed with the lower court “that the declarations filed by defendants demonstrated that there was no triable issue as to the fact of ownership of the meter box, because defendants neither owned nor exercised control over the meter box.” The Court of Appeal also agreed that there was “no triable issue of fact [disputing] that the city, not defendants, owned the real property on which the meter box was located.” But the appellate court went on to conclude that the superior court had erred in granting summary judgment for defendants, because there existed a “triable issue of fact as to whether the combination of the circumstances of defendants’ actual or apparent control over immediately adjacent premises and the foreseeability of injury to plaintiff created a duty on the part of defendants to either warn plaintiff of the danger, or protect him from it, or both.” The Court of Appeal reasoned that the circumstances that “defendants maintained the lawn completely surrounding the meter box” and that defendant Vece had actual notice of the broken or missing cover, gave rise to a duty to protect or warn plaintiff.
II
A
The superior court granted summary judgment in favor of defendants on the grounds that they did not own, or exercise control over, the water meter box into which plaintiff fell, and did not own the land upon which the meter box was located. Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
The circumstance that defendants did not own or exercise control over the meter box itself does not entitle them to judgment as a matter of
This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. For example, in Austin v. Riverside Portland Cement Co. (1955)
The following hypothetical situation illustrates this point. If a live power transmission line falls, creating a hazard, the possessor of the property on which the power line has fallen, who knows of the hazard, cannot escape liability for injuries to persons who enter the land and encounter the power line simply because the land possessor does not own the power line and lacks the authority to disconnect the line or remove it. A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard.
Defendants rely upon the decision in Hamilton v. Gage Bowl, Inc. (1992)
Hamilton is distinguishable from the present case. Unlike Hamilton, the issue in the case before us is not whether defendants had a duty to discover a dangerous condition located on property they did not own. Plaintiff in the present case alleged that defendants had received actual notice of the defective condition of the meter box. The issue, therefore, is not whether defendants had a duty to inspect or repair the meter box, but whether, in light of their alleged knowledge of the dangerous condition of the meter box, they had a duty to persons entering the strip of land to protect them from, or warn them of, the hazard. Defendants could satisfy such a duty by posting warnings or erecting barricades on the property under their control, and would not have been required to inspect or repair the meter box.
Hamilton would be more like the present case if the bowling alley had received actual notice that the sign hanging over its parking lot was secured to the wall improperly and in danger of falling. Under such circumstances, the bowling alley would have had a duty to persons using its parking lot to protect them from, or warn them of, the dangerous sign.
B
Neither does the circumstance that defendants in the present case did not own the land on which the meter box was located entitle them to judgment as a matter of law. In the present case, the superior court found it was undisputed that defendants did not own the narrow strip of land on which the meter box was located, and plaintiff does not challenge that determination here. There remains a triable issue of fact, however, whether defendants exercised control over that land and thus had a duty to protect or warn plaintiff.
“ ‘[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by
We subsequently restated the principles announced in Johnston: “The courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on ‘the premises.’ The physical area encompassed by the term ‘the premises’ does not, however, coincide with the area to which the invitor possesses a title or a lease. The ‘premises’ may be less or greater than the invitor’s property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control.” (Schwartz v. Helms Bakery Limited (1967)
The Restatement Second of Torts uses the phrase “possessor of land,” rather than the terms “owner” or “lessee,” to describe who may be liable for injuries caused by a dangerous condition of land. (See, e.g., Rest.2d Torts,
In similar fashion, the Courts of Appeal have recognized that a defendant’s potential liability for injuries caused by a dangerous condition of property may be based upon the defendant’s exercise of control over the property. “In common law parlance, the possessor of land is the party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control. [Citations.] Thus, in identifying the party vulnerable to a verdict, control dominates over title. ‘The crucial element is control.’ [Citation.]” (Low v. City of Sacramento (1970)
In Orthmann v. Apple River Campground, Inc. (7th Cir. 1985)
In permitting the plaintiff to proceed with his suit, the federal appellate court stated that the case before it was difficult, because “defendants do not own the property from which Orthmann dove. But according to an affidavit .... shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did—the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession.
“This is not to say that the defendants could be held liable, under any tort theory we know, if their customers just strayed onto someone else’s property and got injured there. . . . But if the landowner treats the neighbor’s property as an integral part of his, the lack of formal title is immaterial. Whoever controls the land is responsible for its safety. [Citation.] That is why it is normally the tenant rather than the landlord who is liable to anyone injured as a result of a dangerous condition on leased land and why this field of tort law is more accurately described as land occupiers’ and possessors’ liability than as landowners’ liability. [Citations.] HD It would make no sense to treat an occupier more leniently just because his rights in the land were less well-defined than a tenant’s—or maybe were nonexistent.” (757 F.2d at pp. 913-914.)
In Husovsky v. United States (D.C. Cir. 1978)
Based upon the foregoing circumstances, the Court of Appeals concluded that the United States Government owed a duty “to use reasonable care to protect passers-by on adjoining public ways from hazardous trees” on the tract of land owned by the Government of India. (Husovsky v. United States, supra,
The same reasoning applies where a plaintiff is injured in a defendant’s fenced backyard by a latent dangerous condition known to the defendant. Under such circumstances, the defendant could not escape liability merely by establishing that the fence was not located on the property line and that a neighbor, rather than the defendant, actually held title to the land containing the dangerous condition. As long as the defendant exercised control over the land, the location of the property line would not affect the defendant’s potential liability.
In the present case, the superior court found that defendants held no legal interest in the land on which the meter box was located. Plaintiff does not challenge that ruling in this court. But summary judgment should not have been granted for defendants, because a triable issue of fact exists concerning whether defendants nevertheless exercised control over the property surrounding the meter box and thus had a duty to protect plaintiff from, or warn him of, the hazardous condition of the meter box. Evidence was introduced establishing that defendants maintained the lawn that covered the
Justice Brown’s dissent is correct in stating that “property owners are liable for injuries on land they own, possess, or control.” (Dis. opn. of Brown, J., post, at p. 1190.) But her opinion seems to overlook the fact that the phrase “own, possess, or control” is stated in the alternative. (Isaacs v. Huntington Memorial Hospital (1985)
Justice Brown’s dissent would add a requirement, not found in this court’s decision in Isaacs v. Huntington Memorial Hospital, supra,
The phrase “commercial benefit” apparently first was used in this context in Owens v. Kings Supermarket (1988)
The decision in Southland Corp. v. Superior Court (1988)
The court thus concluded: “Where, as here, there is evidence that petitioners received a commercial advantage from property they apparently had a leasehold right to use (which use by their customers they at least passively encouraged) and where their business was itself the attraction for both customers and loiterers, it is overly simplistic for the issue of control to be resolved solely by reference to a property boundary line and the fortuitous circumstance that the attack on [the plaintiff] took place just 10 feet beyond it. While we can not conclude that these circumstances establish that petitioners did exercise control over the adjacent lot, we do find that they are sufficient to raise an issue of fact that must be resolved by a jury.” (
In Lucas v. George T. R. Murai Farms, Inc. (1993)
This was the state of the law when the Court of Appeal decided Swann v. Olivier, supra,
As noted above, this court held in Johnston v. De La Guerra Properties, Inc., supra,
The other Court of Appeal decision to propose a “commercial benefit” requirement, Princess Hotels Internat., Inc. v. Superior Court, supra,
Justice Brown’s dissent cites no case, and we are aware of none, in which a defendant that exercised control over property on which an injury occurred was found not liable simply because the defendant derived no commercial benefit from that property.
The opinions in Swann and Princess Hotels, and Justice Brown’s dissent, fail to explain why liability for injuries on adjacent property should depend
C
In the superior court, defendants objected to the evidence introduced by plaintiff reflecting that defendants maintained the lawn on the strip of land owned by the city and, subsequent to the incident at issue, constructed a fence surrounding the entire lawn. Defendants argued this evidence was irrelevant and violated the rule set forth in Evidence Code section 1151 that evidence of subsequent remedial conduct “is inadmissible to prove negligence." (Italics added.) In granting summary judgment for defendants, the superior court sustained defendants’ objections to this evidence.
Plaintiff argued on appeal that these evidentiary rulings were incorrect. The Court of Appeal did not rule expressly on these issues in its opinion reversing the summary judgment, but included in its statement of facts the circumstances that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, had constructed a fence around the entire lawn. On review before this court, neither party briefed the issue of the admissibility of this evidence, and both parties mention in describing the circumstances of the case that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, constructed a fence around the entire lawn.
We agree with the implied ruling of the Court of Appeal that the superior court erred in excluding this evidence regarding defendants’ maintenance of the lawn and their construction of the fence. This evidence was highly relevant regarding whether defendants exercised control over the strip of land owned by the city.
Evidence that defendants maintained the lawn on the strip of land owned by the city certainly has some “tendency in reason to prove or disprove” whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control.
The circumstance that defendants constructed a fence surrounding the narrow, city-owned strip of land that bordered their property also is highly relevant. It is obvious that the act of enclosing property with a fence constitutes an exercise of control over that property. Code of Civil Procedure section 323, which defines adverse possession under a written instrument or judgment, states that “land is deemed to have been possessed and occupied • • • HD • • • HD 2. Where it has been protected by a substantial enclosure.” In Lofstad v. Murasky (1907)
Defendants argued in the superior court that construction of the fence could not be considered in determining whether defendants exercised control over the property because the fence was constructed after plaintiff was injured. We agree that the circumstance that the fence was constructed after plaintiff was injured lessens the probative value of this evidence in demonstrating that defendants were exercising control over the property at the time plaintiff was injured, but it does not render the evidence irrelevant. Defendants’ act of building the fence following plaintiff’s injury is circumstantial
As noted above, in Orthmann v. Apple River Campground, Inc., supra,
As noted above, defendants also argued in the superior court that admission of evidence that they constructed the fence after plaintiff was injured violated Evidence Code section 1151, which states: “When, after occurrence
Morehouse v. Taubman Co., supra, 5 Cal.App.3d 548, involved the liability of a general contractor for injuries sustained by an employee of a subcontractor when the employee fell from the top of a wall. Among the issues to be determined was whether the general contractor had retained control of the workplace so as to warrant imposition of liability on that contractor for the accident. In recounting the evidence of such control, the Court of Appeal stated: “Taubman [the general contractor] maintained a crew of carpenters whose functions included installing guardrails at [the construction site]; and in practice, at least, provided guardrails and safety devices. There was testimony both that it was Taubman’s policy to place guardrails around openings or edges of slabs above 10 feet in height and that these were installed around the perimeter of slabs where there was a dropoff, regardless of elevation. While evidence that Taubman’s carpenters installed handrails at the point where Morehouse fell following his injury was not admissible to prove negligence of Taubman (Evid. Code, §1151) it was properly limited (Evid. Code, § 355) and received by the court, on the issue of control of the premises, and as to whose duty it was under the contract to take such safety measures. [Citation.]” (Id. at p. 555, italics added, citing Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965)
In the present case, evidence establishing that defendants constructed the fence after plaintiff was injured would not be admissible at trial to prove that defendants were negligent, but would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff.
Defendants did not own the narrow strip of land on which plaintiff was injured, but plaintiff has presented evidence suggesting that defendants treated a portion of this strip of land as if they did own it, maintaining a lawn that spanned the property line and that rendered part of the land owned by the city indistinguishable from that owned by defendants, and (subsequent to plaintiff’s injury) demonstrated their possession of this land by constructing a fence enclosing the narrow strip containing the meter box. Standing alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers. But the evidence offered in the present case goes farther and is sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land containing the meter box and thus owed a duty of care to protect or warn plaintiff of the allegedly dangerous condition of the property.
III
As should be apparent, we decide only that, based upon the circumstances of the present case, plaintiff has raised a triable issue of fact whether defendants exercised control over the strip of land owned by the city so as to
The judgment of the Court of Appeal is affirmed.
Mosk, J., Werdegar, J., and Chin, J., concurred.
I concur in the judgment and generally with the majority’s reasoning. Contrary to the dissents’ criticisms, today’s decision merely applies settled principles of California law. In that respect, I write separately to explain that a body of law imposing liability for failing to maintain appurtenances to land also favors plaintiff. The principles involved ordinarily appear in tort cases involving appurtenances embedded in sidewalks to benefit adjoining property.
Before discussing the law of appurtenances, however, I explain the basis on which I join the majority opinion. First, although the scope of defendants’ duty to keep the premises in a reasonably safe condition is a legal question for the court (Ann M. v. Pacific Plaza Shopping Center (1993)
Second, as the majority explain, possession and control govern the scope of that duty. “ ‘[T]he right of supervision and control “goes to the very heart of the ascription of tortious responsibility . . . ” (Preston v. Goldman (1986)
Whether or not the land containing the meter box was city owned, plaintiff offered enough evidence of defendants’ control of the premises to raise a triable factual question regarding their liability for his injury. He produced evidence that defendants hired someone to mow the lawn. He also produced
But even if the foregoing evidence were absent, the evidence that defendants neglected to maintain an appurtenance placed on adjoining land for their benefit would suffice to defeat the summary judgment motion. “ ‘The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.’ ” (Mann v. Cracchiolo (1985)
As alluded to, the question of the duty to maintain an appurtenance ordinarily arises in cases involving traps on sidewalks. At common law an adjoining landowner owed no duty to members of the public to protect against defects in public sidewalks. (Winston v. Hansell (1958)
Potential traps giving rise to such liability include “coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner and are located where the general public is likely to walk. In those cases, it becomes the liability of the abutting owner to keep
Liability is imposed because emplacements of this type are appurtenances for the benefit of the possessor and controller of adjoining land. (Hamelin v. Foulkes (1930)
Hippodrome Amusement Co. v. Carius (1917)
The foregoing cases illustrate the principle that “ordinarily an easement or dominant tenement owner has the duty to maintain and repair the easement and the servient tenement owner is under no duty to do so.” (Williams v. Foster, supra,
Naturally, the reason to hold responsible for pedestrians’ injuries those adjoining landowners who modify sidewalks for their own use is that
The summary judgment motion should have been denied because of evidence that defendants controlled the whole lawn, including any part the city may have owned. In the alternative, the motion should have been denied because of evidence that defendants benefitted from a servitude in the form of a meter box on adjoining land on which it was foreseeable that plaintiff might walk. (Hamelin v. Foulkes, supra,
Notes
Defendants objected to Gray’s declaration on several grounds, and the superior court sustained the objection. Plaintiff argued on appeal that this evidentiary ruling was incorrect. The Court of Appeal did not expressly rule on this issue in its opinion reversing the summary
Of course, the liability of a possessor of land no longer depends upon the “rigid common law classifications” of trespasser, licensee, and invitee. (Rowland v. Christian, supra,
In her dissent, Justice Kennard asserts that a defendant who exercises control over land may be liable for injuries caused by a dangerous condition on the property only if the defendant had the right to control the property. (Dis. opn. of Kennard, J., post, at pp. 1176-1178.) But Justice Kennard cites no case, and we are aware of none, in which a defendant who exercised control over property was held not liable for injuries caused by a dangerous condition of such property simply because the defendant had no right to control the property. It would be anomalous to conclude that a person who wrongfully takes possession of land owned by another, exercising control over that land, cannot be held liable for injuries caused by a dangerous condition of the property.
In her dissent, Justice Kennard asserts that the comment to section 328E of the Restatement Second of Torts, cited above, applies only to persons in the process of gaining ownership of land through adverse possession. (Dis. opn. of Kennard, J., post, at p. 1181.) The comment, while offering such circumstances as one example of possession that is not rightful, does not limit the application of the general principles stated in the comment to such circumstances.
Justice Kennard’s interpretation of section 328E of the Restatement Second of Torts suggests that liability may flow from a wrongful exercise of control over property if such conduct constitutes adverse possession that ultimately will ripen into ownership. (Dis. opn. of Kennard, J., post, at p. 1182.) But this means that the potential liability of an adverse possessor of land depends upon whether that person has satisfied all of the prerequisites for obtaining title, such as paying taxes on the property. (Code Civ. Proc., § 325.) It is difficult to discern why the payment or nonpayment of taxes should affect the liability of a possessor of land for injuries caused by a dangerous condition of the property.
In her dissent, Justice Kennard maintains that our holding that there exists a triable issue of fact—as to whether defendants exercised control over the land—is inconsistent with the rule that the existence of a duty is a question of law. (Dis. opn. of Kennard, J., post, at p. 1183.) We agree that “the existence and scope of a defendant’s duty of care is a legal question” for the court to decide (Knight v. Jewett (1992)
Were a “commercial benefit” requirement to exist, its application to the present case would require the resolution of questions including whether residential income property, like that here involved, is a business within the meaning of the rule, and whether the benefit conferred by a water meter (see Justice Mosk’s concurring opinion, post) constitutes a “commercial benefit.”
Having concluded that it was improper for the trial court to grant summary judgment in favor of defendants, because a triable issue of fact exists as to whether defendants controlled the property on which the allegedly defective meter box was located, we have no occasion to consider the circumstances, if any, under which a possessor of land may owe a duty to persons using its property to warn them of, or protect them from, hazards on adjacent property that is not owned, possessed, or controlled by the defendant. (See, e.g., Southland Corp. v. Superior Court (1988)
Justice Brown’s dissent concludes that defendants “did nothing . . . negligent.” (Dis. opn. of Brown, J., post, at p. 1198.) As noted above, the issue whether defendants were negligent is not before us, and we express no opinion on that issue.
Dissenting Opinion
Does a landowner who has no possessory interest in adjoining premises containing a dangerous condition, who has no legal right to control either the premises or the dangerous condition, and who did nothing to create or aggravate the danger have a duty to protect others from the danger? Before today the answer under California law would be “No.” The majority, however, holds that persons who lack the right to control either the dangerous condition or the land on which it is located, and who have done nothing to create or increase the danger, have such a duty merely because they have conducted some unrelated activity on the neighboring land. Because the majority imposes the duty based on innocuous or good-neighborly conduct that does not contribute to the danger and therefore carries no moral blame, its expansion of tort liability runs counter to traditional notions of tort law.
I
On the night of April 17, 1990, plaintiff Gilardo C. Alcaraz walked from the public sidewalk onto a narrow strip of land located in front of the rental property where he had lived for 22 years, stepped on a broken water meter box, and was injured. Both the narrow strip of land and its water meter box belonged to the City of Redwood City (hereafter City). Alcaraz sued his
Vece moved for summary judgment. He presented undisputed evidence that the City owned the strip of land containing the water meter box and maintained the box.
In opposition, Alcaraz argued that even if Vece did not own the water meter box or the land on which it was situated, Vece nonetheless had a duty to repair the broken meter box or to warn Alcaraz about its condition in light of Vece’s control over the City-owned land. As indicia of such control, Alcaraz pointed to (1) the periodic mowing, by Vece’s gardener, of the two-foot-wide strip of grass-covered land that was owned by the City and contained the City’s meter box; and (2) Vece’s construction, after the accident, of a picket fence that separated the lawn area from the public sidewalk and enclosed both Vece’s land and the City’s.
The trial court entered summary judgment for Vece.
II
The majority holds that summary judgment should not have been granted because “a triable issue of fact exists” whether Vece “exercised control over the property surrounding the meter box and thus had a duty to protect plaintiff from, or warn him of, the hazardous condition of the meter box.” (Maj. opn., ante, at p. 1161.) According to the majority, a jury could well decide that control sufficient to impose on.Vece a duty to protect others from or warn them about the hazardous condition of the meter box could be established by evidence that Vece’s gardener had been mowing the grass on the two-foot-wide strip of land owned by the City and containing the City’s meter box, together with evidence that after the accident Vece built a picket fence around the grassy area in front of his rental property, enclosing both his land and the City’s narrow strip of land. {Id. at p. 1170.)
The majority’s holding finds no support in California case law, which until now has imposed a duty to protect others from dangerous conditions on
The general rule of premises liability is set forth in this court’s decision in Sprecher v. Adamson Companies (1981)
The “right to control” gains special significance when more than one individual has a legal interest in land containing a dangerous condition, because it provides a means of ascertaining who has the duty to warn or protect others from that condition. (See Low v. City of Sacramento (1970)
For example, although the interests of a landlord and a tenant in property leased by the tenant overlap to some extent, the tenant has a present interest in the premises while the landlord has only a future reversionary interest. Therefore, the landlord’s relinquishment of the rental premises to a tenant generally imposes on the tenant, not the landlord, the duty to protect others from dangerous conditions on those premises. (Uccello v. Laudenslayer, supra, 44 Cal.App.3d at pp. 510-511; Prosser & Keeton, Law of Torts (5th ed. 1984) § 63, p. 434 [“In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee. . . .”]; see Rowland v. Christian (1968)
In Johnston v. De La Guerra Properties, Inc., supra,
In some situations, the right to control premises containing a hazardous condition or instrumentality may be found in someone who has no ownership or leasehold interest in the premises. For instance, a landowner may grant that right to an independent contractor or licensee. (See Morehouse v. Taubman Co. (1970)
In other situations, an individual’s “right to control” may extend only to the dangerous condition or instrumentality itself and include no other portion of the premises, and yet the individual would have a duty to protect or warn others of the hazard because the right to control the dangerous condition carries with it “a concomitant right and power to obviate the condition and prevent the injury.” (Uccello v. Laudenslayer, supra,
As I have just explained, the right to control land or dangerous conditions on the land may exist separately from any property interest. California courts, in determining whether a duty of care exists in premises liability actions, have therefore treated a possessory interest in property with its attendant right to control the property as a concept separate from the right of
Rather, the general rule to be drawn from California case law is that, in premises liability actions, those who have a right to control either the premises containing a dangerous condition or the dangerous condition itself have a duty to correct the hazard or to warn others of it. The converse, of course, is also true. Absent the right to control either the premises or the dangerous condition, there generally is no duty to correct or to warn. (See Gillespie v. City of Los Angeles (1950)
One exception to this general rule is when a person’s conduct or activity on another’s land causes or increases the risk from a hazardous condition on that land. In that situation, California courts have not hesitated to subject the person to liability. Thus, in Kopfinger v. Grand Central Pub. Market (1964)
In contrast, when, as here, a defendant’s conduct on another’s land does not create or aggravate a dangerous condition on that land, California law imposes no duty on the defendant to protect others from the hazard. Thus, in Hamilton v. Gage Bowl, Inc. (1992)
In summary, under California law persons who have the right to control premises containing a dangerous condition, or who have the right to control the dangerous condition itself, or whose conduct caused or contributed to the hazard have a duty to protect others from the hazard. Therefore, contrary to the majority’s holding, our law does not impose a duty on a landowner to correct or warn of a dangerous condition on neighboring land when the landowner has no right to control that property, and did not create or aggravate the hazardous condition.
Undaunted, the majority seeks, without avail, to justify its holding by relying on two federal appeals court decisions, Husovsky v. United States (D.C. Cir. 1978)
The same two reasons that the California cases I discussed earlier have articulated in imposing a duty to protect—affirmative conduct creating a
Similarly misplaced is the majority’s reliance on Orthmann v. Apple River Campground, Inc., supra,
To decide whether the plaintiff’s complaint stated a negligence claim under Wisconsin law, the federal appeals court in Orthmann first posited that the Floater’s Association, by advertising its inner tube rental to potential customers, had issued an implied invitation for persons renting inner tubes “to use the tree and surrounding land for diving into the river.” (Orthmann, supra,
Therefore, under Orthmann, a duty of care arises only when a landowner either creates a dangerous condition on neighboring land or encourages a particular use of that land resulting in the plaintiff’s injury. (Orthmann, supra, 757 F.2d at pp. 913 [discussing the association’s encouragement of diving as part of the basis for imposing a duty of care on its members], 914 [giving two examples of when treatment of neighboring land as one’s own could give rise to liability, one involving the landowner’s creation of a dangerous pothole on adjoining land and the other in which the landowner encouraged a particular use of adjoining land that exposed the plaintiff to the dangerous condition].) Here, Vece neither created the hazard posed by the City’s broken water meter box nor encouraged a particular use of the City’s land leading to plaintiff’s injuries.
According to the majority, “[i]t would be anomalous to conclude that a person who wrongfully takes possession of land owned by another, exercising control over that land, cannot be held liable for injuries caused by a dangerous condition of the property.” (Maj. opn., ante, at p. 1159, fn. 3.) The majority equates “exercising control” over adjoining land with “possession” of land. In support, the majority cites to Restatement Second of Torts section 328E, which defines the term “possessor of land” to include “a person who is in occupation of land with intent to control it” and to section 328E’s comment a, which states that “[t]he important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person.” (See maj. opn., ante, at p. 1159.) Upon close examination, however, section 328E and comment a have no application here. Ignored by the majority is the next sentence to comment a explaining that under section 328E, a person who occupies land with intent to control it can be a possessor with a duty to protect others coming upon the land only if that person is a “disseisor,” that is, someone in the process of gaining ownership of another’s land through the legal doctrine of adverse possession. (Rest.2d Torts, § 328E, com. a, p. 171 [“Thus a disseisor is a possessor from the moment that his occupation begins, although as between the disseisor and the true owner he is not legally entitled to possession until his adverse possession has ripened through lapse of time into ownership.”]; and
In order to occupy another’s land with the intent to control it for purposes of gaining title through adverse possession, a person must exercise dominion over the property in such a way as to put the true owner on notice that the person claims a right, title and interest in the land. (4 Witkin, Summary of Cal. Law, supra, Real Property, § 96, p. 320; id., § 104, pp. 323-324.) The claim of right must be “hostile” to the possessory rights of the true owner. Therefore, “[i]f the owner permits the person to use the land, the possession is not adverse.” (Id., § 97, p. 321.) Furthermore, the hostile occupancy under a claim of right must continue uninterrupted for a full five-year period (Code Civ. Proc. §§318, 319, 325; 4 Witkin, supra, Real Property, § 108, p. 328), during which time the disseisor must have paid all taxes levied or assessed on the property (Code Civ. Proc., § 325; 4 Witkin, supra, Real Property, § 110, p. 330). Understood in light of these substantial preconditions for gaining title to land through adverse possession (none of which is satisfied in this case), section 328E of the Restatement Second of Torts does not support the majority’s expansive and unprecedented holding that when, as here, a landowner performs innocuous or good-neighborly activity on neighboring property, he or she may be said to “exercise control” over that land, thus warranting imposition of a duty to protect or to warn others of dangers on that land.
In its eagerness to impose liability where none existed before, the majority does not even bother to consider the test this court articulated in Rowland v. Christian, supra,
When, as here, a plaintiff suffers injury from a dangerous condition on land over which the defendant has no right of control, and the defendant’s innocuous or good-neighborly activity on that land neither created nor aggravated the hazard, there is no nexus between the plaintiff’s injury and the conduct of the defendant. Therefore, the defendant bears no moral blame. Nor would imposition of liability in this circumstance advance society’s interests in punishing wrongdoers and in preventing future harm; instead, it would discourage individuals from undertaking socially beneficial actions on neighboring property or turn those who do so into guarantors of the safety of others coming onto the adjoining property. Furthermore, persons lacking any lawful interest in the premises containing a hazardous condition have no insurable interest in those premises. Accordingly, consideration of the various factors set forth in Rowland v. Christian, supra,
III
The majority’s holding suffers from yet another serious flaw. The majority leaves it to the jury, on a case-by-case basis, to decide as “a triable issue of fact’’ the issue of when a landowner has “exercised control" over adjoining property so as to give rise to a duty of care. (Maj. opn., ante, at p. 1153.) But the majority never explains what it means to “exercise control” over adjoining premises. Pity the poor trial judge who after today’s decision will have to fashion a jury instruction on this point.
Furthermore, the majority claims that leaving this decision for the jury is entirely consistent with the rule that the existence of duty is a question of
The majority denies that “the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property.” (Maj. opn., ante, at p. 1167, italics added.) But the majority never decides whether the occasional mowing of the City’s adjacent narrow strip of land by Vece’s gardener in this case is the type of “minimal, neighborly maintenance of property owned by another” that will not give rise to a duty. Thus the majority leaves open the possibility that a jury here and in future cases may well decide that just such minimal, neighborly acts do establish control over adjoining property sufficient to give rise to a duty to prevent harm.
With regard to Vece’s construction of a picket fence, that action took place after the accident in this case. In the majority’s view, evidence of the fence building is relevant to the issue of Vece’s control over the City property before the accident. Even under the rule that the majority announces today, however, that evidence has no relevance, as I discuss below.
In arriving at a contrary conclusion, the majority relies on a decision by the Court of Appeal in Morehouse v. Taubman Co., supra,
Even if Vece’s construction of the picket fence were relevant under the majority’s test, I doubt the wisdom of a rule permitting judicial consideration of after-the-fact conduct as a basis for determining the existence of control before the occurrence of the harm. Such a rule discourages a landowner who learns of an accident involving a dangerous condition on neighboring property from taking any remedial steps to protect others from the hazard, because it might expose the landowner to civil liability on the theory that his or her postaccident conduct established control over the adjacent premises.
Conclusion
Unlike the majority, I would hold that a landowner who has no possessory interest in adjoining property containing a dangerous condition, who has no legal right to control the neighboring premises or the dangerous condition, and whose innocuous, good-neighborly activity on that property has neither caused nor increased the hazard thereon, has no duty to prevent harm to others. Applying this approach to the undisputed evidence that Vece offered in support of his motion for summary judgment, I conclude that Vece had no duty to protect others against the harm posed by the City’s broken water
The majority in this case adopts an ill-conceived and unprecedented expansion of tort liability. By untethering tort liability from either the existence of any legal right to control the property or conduct that creates or aggravates the harmful condition, the majority unduly expands both the scope and uncertainty of negligence liability. A person’s innocuous or good-neighborly acts on the land of another (for example, mowing a lawn, planting flowers, or regularly picnicking) can now make him or her liable to anyone coming on that land, even though there is no causal connection between the acts and the subsequent injury. Nor can anyone be certain just what acts on the land of another will amount to sufficient “control” so as to lead to liability, because all such questions will henceforth be decided by the jury on a case-by-case basis.
Under the majority’s rule, defendant Vece would have been better off and not subject to liability if instead of mowing the City’s adjoining strip of land, he had left it in its natural state, unkempt and a blight on the neighborhood.
I would reverse the judgment of the Court of Appeal and reinstate the trial court’s grant of summary judgment for Vece.
Alcaraz did not sue the City and conceded at oral argument that he had not preserved his right to do so because he did not file the required claim within the statutory time. (See Gov. Code, §§905, 911.2.)
Also named in the complaint were four additional owners of the property at 141-147 Lincoln Avenue. For simplicity’s sake, I will refer to the property owners collectively as the landlord or as Vece.
The majority asserts that under comment a to section 328E, any conduct that can be construed as an act of control can give rise to a duty. (Maj. opn., ante, at p. 1159, fn. 3.) The majority is wrong. Comment a gives only one illustration of a person occupying land with the intent to control it: a person in the process of gaining ownership through the legal doctrine of adverse possession. Comment a thus seems directed at those who occupy land with intent to control it for all purposes, that is, those who exercise the degree of control required for adverse possession. Moreover, even assuming that something less than an ongoing effort to gain ownership through adverse possession might qualify as occupation of another’s land with the intent to control it within the meaning of section 328E, nothing in comment a suggests this could include innocuous or good-neighborly activity such as a landowner’s mowing of a small strip of adjoining land, as involved here.
This court has never adopted section 328E of the Restatement Second of Torts as the law of California, and I can see no reason to do so in this case. Not only are the facts here wholly insufficient to constitute a hostile, open and notorious occupation of the City’s land under a claim of right, but the property on which the activity took place belongs to a public entity (the City) and therefore a disseisor may not gain title to it by adverse possession. (Civ. Code, § 1007 [public land not subject to adverse possession]; 4 Witkin, Summary of Cal. Law, supra, Real Property, § 94, pp. 319-320 [same].)
I am not persuaded by Justice Mosk’s proposal that adjoining landowners should have a duty of care with regard to any “appurtenances” (conc. opn. of Mosk, J., ante, at p. 1173) that provide some benefit to their property, such as “ ‘coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner. . . ” (Ibid.) Like the majority, Justice Mosk fails to take into account the policy considerations enunciated in Rowland v. Christian, supra,
Dissenting Opinion
respectfully dissent. In doing so, I agree with many of the criticisms leveled against the majority opinion by Justices Kennard and Brown. As they suggest, the majority have created a new, vague, dangerous, and unreasonable form of premises liability against persons who merely volunteer for limited caretaking activities on their neighbors’ land. The limits of the rule applied by the majority are not clearly articulated, and the majority’s recognition of possible liability in this case cannot be justified under the balancing test pertinent to the existence of a tort duty, as set forth in Rowland v. Christian (1968)
I write separately only because I am uncertain that either of the other dissenting opinions has isolated the precise principles which negate defendants’ duty in this case. Indeed, as the multiple opinions themselves demonstrate, the numerous authorities governing premises liability permit differing
It is clear that one has no affirmative responsibility for the safety of property he or she does not “own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985)
In determining whether occupiers of land should be liable for harm arising on adjacent property for which they disclaim possessory responsibility, the courts have considered numerous case-specific factors to decide whether the requisite power and duty to “supervis[e]” and “manage” the safety of the adjacent premises has fairly arisen. However, given the extreme facts before us, it is unnecessary here to reconcile every arguable ambiguity and inconsistency.
At the very least, nothing in the case law described at length by the majority and the dissents of Justices Kennard and Brown suggests that a person owes a duty to protect or warn against hazards which arise exclusively on the premises of another, and to which premises the danger is confined, when the person neither (1) caused or aggravated the dangerous condition, nor (2) holds any legal right of “supervisory” possession and control over the premises or the hazard, nor (3) has engaged in conduct suggesting the “de facto” assertion of such “supervisory” possession and control, nor (4) has derived any direct benefit which is linked to the hazard, nor (5) is vested with authority to remedy the specific danger. Indeed, there are no fair or rational grounds for imposing a duty of safety management on one who has none of these connections to the dangerous condition or the premises on which it is located.
We need go no further to decide this case. Even under the minimum standard I have just described, the instant trial court’s summary judgment for defendants was correct.
Moreover, there is no evidence or argument that defendants derived any direct economic benefit from the City-owned strip, or from the broken meter itself. It is undisputed that defendants were not responsible for either the existence or the degree of the danger on premises they did not legally own, possess, or control. Nor is there the slightest evidence that defendants contributed to the danger by encouraging persons to traverse the area where the hazard was located. Of course, plaintiff does not contend that defendants had any authority to repair the broken meter, which was operated and maintained solely by City.
The majority nonetheless hold that there is a triable issue of defendants’ duty at least to warn of the danger, or to cordon it off. The majority’s conclusion seems premised on the notion that by their conduct, defendants asserted, de facto, some form of “control” over the City-owned strip. Accordingly, the majority reason, a trier of fact should be free to hold defendants generally responsible for the reasonable safety of that area.
Like Justices Kennard and Brown, I disagree. Prior to plaintiff’s injury, defendants’ sole relationship to the premises on which plaintiff was injured —other than the adjacent nature of their own land—was that they mowed the lawn on the City-owned strip at the same time they mowed their own.
Contrary to the majority’s assertion, this evidence has no “tendency in reason” (Evid. Code, § 210) to prove that defendants asserted de facto “control” over the City-owned strip of a degree and nature which might impose a general duty to supervise and manage its safety. As Justice Kennard suggests, the mere fact that one enters his neighbor’s land from time to time, in order to conduct limited volunteer caretaking activities which have no relationship to hazardous conditions on the premises, obviously does not imply an assumption of supervisory control over all such hazards, with the attendant duty to manage them safely. To conclude otherwise, as the majority do, is both illogical and unfair. Such a conclusion is also bad public policy. Under facts like those presented here, the majority’s rule will discourage communitarian efforts to maintain the appearance of a neighbor’s neglected land.
But even if postinjury conduct at the scene of an accident may sometimes be relevant and admissible on a disputed issue of “control” of the site, that principle is not logically applicable here. Morehouse v. Taubman Co. (1970)
Thus, in Taubman, the very nature of the business relationship between two contractors created inherent uncertainty about the degree of responsibility for workplace safety retained by each in their joint efforts on the contracted project. Evidence that one or the other actually undertook safety duties on the site, both before and after the accident, was therefore probative on that issue.
Orthmann v. Apple River Campground, Inc. (7th Cir. 1985)
Here, by contrast, there is no other basis for an inference that, at the time of plaintiff s accident, defendants maintained any relationship with the City-owned strip or the defective meter which implied responsibility for safe
In sum, evidence that defendants mowed the City-owned strip, and that they fenced the property after the accident, even when considered in combination, is not sufficient to create a triable issue that they asserted “supervisory” possession and control of the strip, thereby assuming a duty to protect or warn against a City-owned hazard on that land. It follows that the trial court did not err in awarding defendants summary judgment. (See Sprecher v. Adamson Companies, supra,
This case should be governed by the venerable judicial maxim: “[I]f it ain’t broke, don’t fix it.” Unfortunately, the majority fails to heed this sensible advice, and today’s decision drastically enlarges the potential tort liability of thousands of California homeowners.
Until now both the rules for finding a duty and the rationale for imposing adjacent premises liability have been reasonably clear. The existence of “duty” is a question of law. (Thompson v. County of Alameda (1980)
Thus, property owners are liable for injuries on land they own, possess, or control; they are liable for injuries on adjacent property if their active negligence created an external effect which led to the injury; but when they have not created the external hazard and, as in this case, the question of control cannot be cleanly resolved, courts have prudently required an additional prerequisite for liability. In cases where the landowner or tenant might be liable for off-premises injuries, courts require evidence of substantial control, a clearly derived benefit from the use of the particular area that caused plaintiff’s injury, or some combination of control and benefit. Although not always articulated in the cases implicitly applying them, the logic of these rules provided a rational and intelligible basis for finding or rejecting liability in adjacent premises cases. Until today.
The majority opinion abrogates these essential limits. It jettisons the requirement that the defendant property owner derive a benefit directly from
I
A
Two recent opinions of the Court of Appeal—both of which found landowners not liable for off-premises injuries and which the majority now peremptorily disapproves as precedent—illustrate the essential conditions for tort liability in the typical adjacent landowner case. In Swann v. Olivier (1994)
A unanimous Court of Appeal affirmed. Starting from “the commonsense rule that one generally cannot be liable, as a landowner, for injuries that occur on property outside one’s ownership, possession or control” (Swann, supra,
“The first exception,” the Swann court wrote, “needs no elaboration. Obviously one cannot leave a banana peel on a public sidewalk and escape
“Moreover,” the Court of Appeal continued, “the defendants either directly created the risk (Schwartz) or exercised direct (Johnston) or de facto (Kopfinger [v. Grand Central Pub. Market (1964)
B
As an even more recent opinion by the First District Court of Appeal makes clear, the liability of landowners for injuries sustained on adjacent property requires proof of both a direct (or “special”) commercial benefit to the abutting landowner and “possession or control”; neither condition is sufficient alone. In Princess Hotels Internat., Inc. v. Superior Court (1995)
Building on the opinion in Swann, supra,
C
These two recent opinions do not stand alone. They build on a thick strand of precedent whose persistent (if not always articulated) theme is the commonsense requirement that before one can be liable for injuries sustained on land she does not own, the defendant must have exploited the adjacent premises in a way that was not only “direct,” “special,” or “unique,” but carried with it an advantage arising out of the plaintiffs use of the very feature of the adjacent property that led to the injury. Where these prerequisites are met, the duty properly applies even though the defendant has no ownership or possessory interest in the adjacent property, and only exercises “control” over part of it. As the cases demonstrate, however, the precise nature of the “control” necessary to support the possibility of tort liability differs markedly from the control exercised by one who owns or possesses real property.
The majority’s response to these reasoned analyses is simply to sweep aside these limiting principles as “dicta,” and to disapprove the language in Swann, supra,
As the Court of Appeal’s opinion in Swann, supra,
Viewed from that perspective, the cases upholding landowner tort liability for injuries on property the defendant does not own or possess comprise a limited and coherent exception to the general rule of nonliability. In South-land Corp. v. Superior Court (1988)
Indeed, every case relied on by the majority as upholding landowner liability for injuries sustained on adjacent property involved just such a “direct” commercial benefit. In none did the court uphold tort liability absent a palpable advantage to the defendant from the plaintiff’s use of a feature of the adjacent property that caused the injury. Each of these cases involved uncertainties about the “control” the defendant landowner exercised over the adjacent property.
In Johnston v. De La Guerra Properties, Inc., supra,
In Ross v. Kirby, supra,
We relied on Johnston v. De La Guerra Properties, Inc., supra,
In each of these cases, the equivocal character of the defendant property owner’s actual “control” over the adjacent property was supplemented—and occasionally replaced—by the commonsense perception that, because the defendant had derived a direct, business-related benefit from the use made by the plaintiff of the very feature of the adjoining property that led to the injury in suit, tort liability was properly a matter for the trier of fact to determine. However rough-and-ready it may appear in theory, this reading of the case law has an instinctive appeal. Imposing liability on a property owner for injuries sustained on adjoining land seems sound in these cases
Thus the formulation by the Court of Appeal in Swann, supra,
Of course, the corollary also applies. In the absence of a direct benefit derived from the very feature of the adjoining property that caused the plaintiff’s injury, no liability should attach. The majority insists that the result in Johnston v. De La Guerra Properties, Inc., supra,
II
It is possible the majority is impliedly adopting a new rule in the aftermath—almost 30 years on—of this court’s opinion in Rowland v. Christian, supra,
Moreover, as Justice Kennard has noted, applying the Rowland v. Christian criteria demonstrates that liability should not attach in this case. (Dis. opn. of Kennard, J., ante, at pp. 1182-1183.) While it is “foreseeable” that one in plaintiff’s precise circumstance might be injured by stepping on the defective meter housing cover, and certain that plaintiff was injured, not one of the remaining factors outlined in Rowland supports liability in this case. Indeed, several pull strongly in the opposite direction. The lesson of this case is simple: Do no good works lest you incur liability. The homeowner who clears brush from public lands to minimize fire danger; the property owner who pays a horticulturist to prune trees in a subdivision’s common area, as well as the landlord who mows an unowned strip of ground, may now be liable to anyone injured on the premises even though their activity is completely unrelated to the cause of the injury.
These defendants did nothing villainous or even negligent. They neither created the hazard, nor made it worse, nor obtained a “commercial benefit” from the plaintiff’s “use” of it. Moreover, they had no ability to correct a problem that resulted from the city’s apparent negligence. Instead, defendants acted responsibly by mowing the city-owned strip between their property and the sidewalk rather than allowing it to become an eyesore. And once an injury occurred, they sought to prevent future problems. For their pains, the majority will teach them the truth of another old adage: “no good deed goes unpunished.”
Conclusion
I would reverse the judgment of the Court of Appeal and direct the trial court to enter summary judgment for defendants.