Opinion
—Aрpellants Vin Jang T. Lee and Yeu Tsu N. Lee contest the award of a summary judgment in favor of respondent Takao Building Development Co., Ltd. (Takao). Appеllants sued Takao and others in negligence and trespass for damages incurred due to the loss of lateral support of appellants’ building. The trial court found that appellants’ action against Takao had no merit and that there were no triable issues of fact.
Summary judgment may properly be granted only where no triable issue of material fact exists and where the moving party’s affidavits set forth sufficient facts to sustain a judgment in its favor. (Code Civ. Proc., § 437c;
Bank of Beverly Hills
v.
Catain
(1982)
The facts of this case are not in dispute. Appellants’ property is adjacent to a lot presently owned by Takao. Takao purchased the property in April 1982. At the time of the purchase, the property consisted of a concrete basement floor within an area of aрproximately 5,800 square feet. Prior to April 1982 a building stood on the lot. The building was seriously damaged by fire in October 1981 and was ordered demolished by the Los Angeles Building and Safety Department. G. G. Bauman, a remaining defendant in the underlying suit,
1
contracted with another defendant, Quality Wrecking,
Appellants contend that Takao’s liability in this case stems from the principle stated in the Restatement Second of Torts section 366. 2 Under that section, one who is in pоssession of land upon which there is a structure or other artificial condition which is unreasonably dangerous to persons or property outside the lаnd can be subject to liability for harm caused by the conditions. Relying on this principle, appellants argue that Takao’s failure to take steps to rеpair the dangerous condition caused by the removal of the lateral support was an act of negligence. Appellants have not estаblished that a structure or other artificial condition which was unreasonably dangerous to appellants existed on Takao’s property during the time оf its possession of the property. Even if such condition existed on Takao’s property, that fact could not establish Takao’s liability in this case. Apрellants are suing for damage caused by the negligent removal of the foundation wall of the demolished building, which allegedly caused appellants’ building to lоse its lateral support. Thus, section 366 of the Restatement has no application in this case. 3 Likewise the cases cited by appellants which apply the principle stated in section 366 are not controlling. What must be determined here is whether a subsequent owner is liable for the loss of an adjoining оwner’s lateral support when the loss was caused by the acts of a previous owner.
One who negligently withdraws lateral support of another’s land or thе buildings on that land is subject to liability for harm resulting to the land or the buildings. (Rest.2d Torts, § 819; see
Holtz
v.
Superior Court
The parties cite no California case deciding thе issue of whether a subsequent purchaser of land is liable for the removal of lateral support caused by the previous owner, and we find no California case so deciding. The court in
Sager
v.
O’Connell
(1944)
A petition for а rehearing was denied January 6, 1986, and appellants’ petition for review by the Supreme Court was denied February 27, 1986.
Notes
Bauman is alleged to be “the successоr trustee to Gladys Towles Root Geiger under the Testamentary Trust in the Last Will of Charles Henry Towles, Deceased."
“One who takes possession of land upon whiсh there is an existing structure or other artificial condition unreasonably dangerous to persons or property outside of the land is subject to liability for рhysical harm caused to them by the condition after, but only after, [¶] (a) the possessor knows or should know of the condition, and [¶] (b) he knows or should know that it exists without thе consent of those affected by it, and [¶] (c) he has failed, after a reasonable opportunity, to make it safe or otherwise to proteсt such persons against it.” (Rest.2d Torts, § 366.)
Appellants make reference to section 839 as being “[t]o the same general effect” as section 366. Sectiоn 839 “has been changed by rewording it to conform to § 366.” (Rest.2d Torts (appendix) § 839.) (See fn. 2, ante.) Section 839 recognizes a cause of action in nuisance against a possessor who fails to abate an artificial condition. Having concluded that appellants have not established a dangerous condition оn Takao’s property, we find that, like section 366, section 839 has no bearing on this case.
The pertinent language of section 817, subdivision], is virtually identical in the first and second Restatements: “Persons subject to liability—Liability of transferees. The person liable under the rule stated in this Subsection [Withdrawing Naturally Necessary Latеral Support] is the actor who withdraws the naturally necessary support. It is immaterial whether in respect to the supporting land the actor is owner, possessor, licensee or trespasser. The owner or possessor of this land is not liable under the rule stated in this Subsection unless he was an actor in the withdrаwal of support. ”
That section states: “ Time of Ownership. Where an owner of land has withdrawn lateral support from an adjacent property, he remains liable therefor notwithstanding his subsequent transfer of land to a third person. On the other hand, a purchaser of land is not liable for a condition or consequence resulting from a former owner’s excavation leaving the adjoining land without lateral support. ”