ALCARAZ v. VECE

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Court of Appeal, First District, Division 2, California.

Gildardo C. ALCARAZ, Plaintiff and Appellant, v. Peter VECE, et al., Defendants and Respondents.

No. A066085.

Decided: November 09, 1995

William K. O'Brien,Colleen Duffy–Smith, O'Brien & Harrington, San Francisco, B.E. Bergesen, Berkeley, for appellant Gildardo C. Alcaraz. Otis McGee, Jr., Jesper I. Rasmussen, Arnelle, Hastie, McGee, Willis & Greene, San Francisco, Joni Brandvold, Redwood City, for respondents Peter Vece, et al.

I. SUMMARY

Gildardo Alcaraz (plaintiff) sued his landlords, Peter Vece and others (defendants), for personal injuries allegedly suffered when he stepped on an uncovered or broken concrete utility meter box in the lawn near his apartment building.   The trial court granted summary judgment for defendants because they neither owned nor had control over the utility box.   We reverse, finding a triable issue of fact as to whether circumstances existed which created a duty of defendants to warn or protect plaintiff from the danger.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 1991 plaintiff filed a complaint alleging that he suffered personal injury arising from premises liability due to defendants' negligent maintenance of their property and their failure to warn or guard plaintiff against a dangerous condition.   On March 31, 1993, plaintiff filed a first amended complaint for damages “arising from premises liability and negligence,” alleging that defendants were the owners of property located at 141, 143, 145, and 147 Lincoln Avenue, Redwood City, and plaintiff was their tenant.   On the night of April 17, 1990, the complaint continued, plaintiff walked onto the grass at 141 Lincoln and stepped on an uncovered, broken utility service box “located on [defendant's] property,” causing him to slip or trip and fall.   According to the allegations, defendants “contributed to or assisted in the creation of a dangerous and defective condition on their property ․ which had existed on such property in sufficient time for [defendants] to have constructive knowledge of such condition.”   Within six months prior to the date of the accident, the complaint alleged, defendants had been put on actual notice of the dangerous and defective condition, were asked to remedy it, and failed to do so.

The complaint alleged a single cause of action for “negligence/premises liability.”   Plaintiff's theory was that defendants failed to supervise persons coming onto the property and thereby allowed the cover of the utility service box to become broken or uncovered.   The complaint alleged that defendants failed to exercise care as required by Civil Code section 1714, proximately causing injury and loss to plaintiff.

After filing answers and a cross complaint against Redwood City (city), defendants moved for summary judgment on the theory that they neither owned nor had control over the meter box.   A declaration in support of the motion by Roger Bender, a Department of Public Works supervisor, stated on behalf of the city substantially as follows:  The city operates the water department and is responsible for the water delivery system, including meters set in the ground and their covers;  the water department is responsible for repairing and replacing broken or missing water meter covers;  the water meter set in the ground for the apartment building in question was a municipal water meter and box;  and it was located on city property.

Jon Lynch, the senior civil engineer for the city, reviewed various relevant block books and maps and declared that the meter box in question “is located entirely within [a] ten foot strip of [city]-owned land.”

Defendants submitted affidavits stating that:  they did not maintain or control the meter box;  they understood that the meter box was owned, possessed, maintained and controlled by the city, which would repair broken meter boxes;  they did not have control over the city or the water department so as to require them to repair or replace a broken meter cover;  and they did not remove or break the meter cover.

Plaintiff opposed the motion.   He filed a declaration of Stanley Gray, a licensed land surveyor retained to conduct a field survey regarding the location of the water meter in question.   Gray concluded:  “[T]he southerly right-of-way line of Lincoln Avenue ․ 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], but rather a portion thereof may be located inside the property boundaries of 141–147 Lincoln Avenue․”

Stephen Amer, a tenant of 143 Lincoln at the time of the accident, declared that he did not see the accident but had warned both the water company and defendant Vece about the need to repair the water meter box.   He stated that on “various occasions” prior to the accident he had seen that the cement lid on the meter box was broken or missing.   He reported this fact to the water meter reader.   On approximately five occasions, he alleged, he brought the dangerous condition of the meter cover and the need for repair to the attention of defendant Vece.   These warnings went unheeded, allegedly.

Defendant Vece stated in a deposition that throughout the period in question defendants paid a gardener to maintain the lawn surrounding the meter box.   Vece stated in his deposition that, after the accident, defendants erected a picket fence around the lawn containing the meter box so as to separate the sidewalk entirely from the lawn in front of the defendants Lincoln Avenue apartments.   One of plaintiff's attorneys filed a declaration to the same effect.

After further briefing and argument, the court granted the motion.   Judgment for defendants was entered April 6, 1994.1  The trial court denied plaintiff's motion for new trial on May 24, 1994.   This timely appeal followed.

III. DISCUSSION

A. Standard of Review **

B. Premises Liability Law Generally

 “Premises liability is a form of negligence based on the holding in Rowland v. Christian [1968] 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, and is described as follows:  The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.   A failure to fulfill this duty is negligence.  (BAJI No. 8.00 (1983 rev.).)”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, 264 Cal.Rptr. 756.)

A number of appellate decisions state that in premises liability cases the basis for liability is ownership of the land on which the injury occurs.   For example:  “ ‘In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.’  [Citations.]”  (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487–488, 2 Cal.Rptr.2d 405;  Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)  “The duty to take affirmative action for the protection of individuals coming upon the land ‘is grounded in the possession of the premises and the attendant right to control and manage the premises.’  (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368, 178 Cal.Rptr. 783, 636 P.2d 1121.)   Generally, however, a landowner has no right to control and manage premises owned by another.”   (Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1146–1147, 214 Cal.Rptr. 405.)

It has been said that premises liability is based on ownership, possession or control, not on the mere potential to exert influence or control over land of another.  “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.”  (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726, 246 Cal.Rptr. 199.)

The trial court based its grant of summary judgment on these principles and on a finding that there was no triable issue of fact as to ownership of the meter box or the surrounding land.   We agree 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.   Rather, these declarations established that the city owned the water meter and had the right to control, maintain and repair it.

Additionally, we perceive no triable issue of fact that the city, not defendants, owned the real property on which the meter box was located.   Plaintiffs attempted to controvert this fact with Stanley Gray's declaration as to a reasonable probability that a portion of the water meter might be located on defendants' land.   However, Gray's ambivalent declaration did not controvert the unambiguous declarations to the contrary and, therefore, did not raise a triable issue of fact regarding location and ownership or control of the meter box.

However, and despite these conclusions we are persuaded that a grant of summary judgment was not proper in this case.

C. Summary Judgment in this Case

 If the sole basis for possible liability here were ownership of the meter box and the surrounding land, we would uphold the trial court's grant of summary judgment based upon the above authorities and analysis.   However, upon reviewing both the record and other pertinent authority, we find a different basis for possible liability.   Specifically, we hold that there was 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.

Plaintiff correctly argues that, even if the meter box were not on defendants' property, defendants may have owed a duty of care to plaintiff with respect to a danger on adjoining property.   Although the only theory of recovery expressly stated in the complaint was that of “premises liability,” the complaint also alleged, albeit marginally, other theories of liability.   Thus, the complaint alleged that defendants had responsibilities as provided in Civil Code section 1714.   Subdivision (a) of that section provides in relevant part:  “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.”

Plaintiff alleged two circumstances which, if found true by a fact finder, could give rise to a duty to protect or warn plaintiff on the part of defendants.   One was the allegation that Amer had, approximately five times, apprised Vece of the danger from the broken meter box and that Vece had done nothing.   The second is that defendants maintained the lawn completely surrounding the meter box during the time of the accident.   The law giving rise to a duty to protect or warn under either of these circumstances is well established.   A fortiori, those duties are even more likely to be present when both circumstances obtain.

In Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 170 P.2d 5 (hereafter Johnston ), the plaintiff was on her way to dinner at a restaurant located on property owned by one defendant and leased by another.   Plaintiff's husband parked their car on an adjoining property.   Plaintiff did not see or use a ramp from the adjoining property down to the restaurant.   Instead, she entered defendant's unlit property by stepping down from a low wall on the adjoining property onto a private walkway on defendant's property.   Because defendant's property was unlit, plaintiff misjudged her step, fell and broke her hip.   The trial court granted a nonsuit at the close of plaintiff's case.   The Supreme Court reversed, stating as follows.

“The evidence is sufficient to support a finding that the defendant owner was negligent.   It encouraged patrons of its tenants to park their cars on the adjoining property and approach the building by way of the private walk.   It had knowledge of the condition which caused the accident, and a jury could find that defendant owner should have foreseen that patrons parking at night, and unaided by any lighting, might fail to discover the ramp, and, in attempting to gain entrance to the building, step onto the walk at a dangerous place.   Under these circumstances, it cannot be said as a matter of law that defendant owner was not negligent in failing to light the premises or provide guard rails, or otherwise to protect or warn business invitees against the danger inherent in this particular approach.”  (Johnston, supra, 28 Cal.2d at pp. 400–401, 170 P.2d 5.)

Similarly in the case at bench, there was evidence that defendants had knowledge of the condition which caused the accident, and a jury could reasonably find that defendants should have foreseen that a tenant walking across the lawn at night might stumble on or into the broken meter box, causing severe injury.

Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, 250 Cal.Rptr. 57 (hereafter Southland) contains a thoughtful analysis of the duty of a landowner regarding adjoining premises.   The plaintiff and his companion parked in a vacant lot adjacent to a 7–Eleven Store owned and operated by Southland.   After plaintiff finished shopping, he was criminally assaulted on the adjacent property by three young men who had been loitering around the store.   Southland did not own the adjacent property, but knew that its customers frequently parked there.   Plaintiff often chose to park there when shopping at the 7–Eleven, and he believed the adjacent property was under the control of the store.  (Id. at pp. 660–661, 250 Cal.Rptr. 57.)

The Court of Appeal found that plaintiff's belief was reasonable and denied Southland's petition for a writ compelling the trial court to grant Southland's motion for summary judgment.   The court pointed out that Southland had done nothing to discourage its customers from using the adjacent property to park, e.g., it had erected no signs or fences.   Further, the store benefited from its customers using the property for overflow parking, and the store manager knew that belligerent local youths loitered around the store.  (Southland, supra, 203 Cal.App.3d at p. 661, 250 Cal.Rptr. 57.)   The Southland court held that, depending on Southland's “actual or apparent control of the adjacent property” as well as foreseeability of the injury, Southland could be found to have a duty of care to its customers who used the adjacent property.   The court held that triable issues of fact existed as to control and foreseeability and denied the writ petition.  (Southland, supra, 203 Cal.App.3d at pp. 662–663, 250 Cal.Rptr. 57.)

The present case presents an analogous scenario.   At the time of the accident, defendants had done nothing to discourage their tenants from using the adjacent property (that part of the lawn containing the meter box) as a walkway.   They had not erected a fence or a sign.   According to the Amer declaration, defendants had been informed repeatedly and were therefore aware of the danger.   Defendants may be found to have a duty of care with respect to tenants who used the adjacent property, depending on a showing of actual or apparent control and foreseeability of the injury.

 Whether a duty is owed in a particular set of circumstances is a question of law, but underlying that question are a number of factual determinations which must be resolved.   These were listed in Rowland as follows:  “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”  (Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561;  Southland, supra, 203 Cal.App.3d at p. 664, 250 Cal.Rptr. 57.)

 There is no question that a landowner owes a duty to someone coming onto the land.   Many decisions, some of which we have summarized above, have stated in various ways and manners that a duty is not owed under a premises liability theory to someone on land owned by another.  (See, e.g., Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at p. 134, 211 Cal.Rptr. 356, 695 P.2d 653.)   However, we believe those holdings are not applicable in situations such as those seen in Johnston or Southland or, upon a proper showing, the present case, where the “premises” are deemed to include “means of ingress and egress as a customer may reasonably be expected to use.”  (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 239, 60 Cal.Rptr. 510, 430 P.2d 68.)

When Rowland v. Christian eliminated the distinction between invitees and others,2 the critical question became not the status of the plaintiff but control over the premises.   The Southland court demonstrated that the premises liability decisions which denied recovery ostensibly because the defendant did not own the adjoining land were, in fact, cases where the owner had no control over the adjacent premises.   For example, in Wylie v. Gresch (1987) 191 Cal.App.3d 412, 424, 236 Cal.Rptr. 552, upon which defendants rely, the Court of Appeal held that a landlord had no duty to warn a tenant of a dangerous dog kept next door on premises over which the landlord was not alleged to have any control.   On the other hand, the Southland court pointed out that, where a land owner exercised actual or apparent control over the adjacent premises, a duty, and therefore liability, can be found.  (Southland, supra, 203 Cal.App.3d at pp. 665–667, 250 Cal.Rptr. 57.)

In the case at issue there were facts alleged which, if true, would support a jury finding that defendants exercised actual or apparent control over the lawn surrounding the broken meter box, that they had reason to believe their tenants would walk on that strip of grass, and that defendants had been apprised of a dangerous condition on the property over which they exercised control.   A finding that these facts were true could give rise to a ruling that defendants had a legal duty to warn plaintiff of the danger from the broken meter box or to avert the hazard in some way.   Furthermore, a factual finding that injury was foreseeable in these circumstances would be reasonable.   All of these questions turn on factual findings which should not have been resolved by summary judgment.

D. Adequacy of the Pleadings ***

IV. DISPOSITION

The judgment is reversed;  appellant to recover his costs on appeal.

FOOTNOTES

1.   Defendants filed a dismissal without prejudice of their cross complaint against the city.

FOOTNOTE.   See footnote *, ante.

2.   “A [person's] life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he [or she] has come upon the land of another without permission or with permission but without a business purpose.”  (Rowland v. Christian, supra, 69 Cal.2d at p. 118, 70 Cal.Rptr. 97, 443 P.2d 561.)

FOOTNOTE.   See footnote *, ante.

HAERLE, Associate Justice.

SMITH, Acting P.J., and PHELAN, J., concur.