JENDRALSKI v. BLACK

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Court of Appeal, Fourth District, Division 1, California.

Angela JENDRALSKI, Plaintiff and Appellant, v. Mike BLACK, et al., Defendants and Respondents.

D001052.

Decided: January 22, 1986

Tuverson & Hillyard and Teresa A. Williams, Santa Monica, for plaintiff and appellant. Wingert, Grebing, Anello & Chapin and Michael M. Anello, San Diego, for defendants and respondents.

Angela Jendralski was severely injured when attacked by a wild monkey kept by tenants in an apartment complex in which she also resided.   Her appeal from a judgment in favor of apartment manager Mike Black and landlord John Gil (jointly, landlord) faults the trial court for instructing the jury that landlord could not be held liable for attacks by tenant-maintained animals unless Jendralski proved landlord actually knew or must have known tenants were maintaining a dangerous animal on the leased premises.   Although proof of a landlord's actual knowledge that a tenant is maintaining a dangerous condition has been required to establish liability to third parties whose injuries are caused by a domesticated animal kept at a single family dwelling (see Uccello v. Laudenslayer, 44 Cal.App.3d 504, 510, 118 Cal.Rptr. 741;  Lundy v. California Realty, 170 Cal.App.3d 813, 216 Cal.Rptr. 575), we conclude the exception to ordinary negligence principles recognized in the foregoing cases should not be applied where a co-tenant of an apartment complex is injured by wild animals maintained in an adjoining apartment.   We conclude the trial court erred in not instructing that, under basic negligence principles, landlord would be liable if he knew or in the exercise of reasonable care should have known of the dangerous condition and remedied the condition or given adequate warning to prevent the resulting injury.  (See BAJI No. 8.20 (1974 rev.).)   We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Jendralski lived in a five-unit apartment complex owned by Gil and managed by Black who lived in the complex.   Black rented the apartment above Jendralski's to Stephanie and Caeser O'Campo.   Their modified lease permitted them to keep one caged bird.   Jendralski was invited into the O'Campo apartment where she saw hundreds of birds, parakeets and cockatoos, cockatiels, finches, lovebirds, a macaw, as well as squirrels and a monkey.   The monkey attacked Jendralski, severely injuring her head and right hand.

Three to four weeks before this incident, Jendralski heard noises emanating from the apartment, including “screeching,” “screaming,” “cheeping,” “howling,” “squealing,” and “cooing” sounds, as well as “thumping,” “bumping” and “banging.”   She mentioned these noises to David Lewis, a neighbor, who lived in the apartment across the street from Gil's apartment complex.1  Also, three to four weeks before the incident, Jendralski complained to Black about the noises and he responded “yes, I have to check it out.”   Black stated he did not recall that conversation;  never heard any excessive or unusual animal noises from the apartment;  may have heard some bird sounds consistent with having the one authorized bird in a cage;  and that had he had any indication something unusual was going on in the O'Campo apartment, he would have responded immediately and investigated the matter.   Black testified he first learned of the birds and animals in the apartment on July 3, 1979, when he entered the apartment after the O'Campos failed to pay the rent.   He found the apartment in filthy condition, covered with animal excrement.2

Joyce Wheeler, also a tenant at the apartment complex during the O'Campos' stay, did not recall hearing any bird or animal noises or any unusual noises of any nature coming from the O'Campo apartment.

THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY UNDER THE INSTANT CIRCUMSTANCES PLAINTIFF WAS REQUIRED TO SHOW THE LANDLORD HAD ACTUAL KNOWLEDGE OF THE DANGEROUS CONDITION

Among the negligence instructions proffered by Jendralski the trial court refused was BAJI No. 8.20 (1977 rev.) regarding a lessor's knowledge of a defective condition.3  Instead, regarding the knowledge of the existence of the dangerous condition, the trial court told the jury plaintiff had the burden of establishing “the defendants knew or in the exercise of reasonable care must have known that the tenant O'Campo was harboring wild animals.”   The court further instructed:

“If you find that the plaintiff was injured by a wild animal and that the defendants knew or must have known of the existence of a dangerous condition in the O'Campo apartment, you will find in favor of plaintiff․

“Concerning the knowledge of the existence of a dangerous condition required of the defendants, before you may find them liable to the plaintiff, actual knowledge of facts sufficient to put them on notice of said dangerous condition must exist and not mere constructive knowledge.

“․ Only where the circumstances are such that the defendant must have known and not should have known will an inference of actual knowledge be permitted.”

It is firmly established in California that all persons owe a duty of care to avoid injury to others unless public policy clearly mandates an exception by made.  (Lipson v. Superior Court, 31 Cal.3d 362, 372, 182 Cal.Rptr. 629, 644 P.2d 822;  Swanberg v. O'Mectin, 157 Cal.App.3d 325, 330, 203 Cal.Rptr. 701.)   Indeed, Civil Code section 1714, subdivision (a) establishes the fundamental principle of negligence liability, providing in pertinent 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 skill in the management of his property or person․”  This fundamental rule is applicable in determining liability of owners and occupiers of land (Rowland v. Christian, 69 Cal.2d 108, 111, et seq. 70 Cal.Rptr. 97, 443 P.2d 561) and is further applicable to the determination of a landlord's liability to a tenant, giving rise to the former's duty of reasonable care in providing and maintaining the leased premises in a safe condition (Stoiber v. Honeychuck, 101 Cal.App.3d 903, 924, 162 Cal.Rptr. 194;  Evans v. Thomason, 72 Cal.App.3d 978, 985, 140 Cal.Rptr. 525;  Golden v. Conway, 55 Cal.App.3d 948, 955, 128 Cal.Rptr. 69;  Brennan v. Cockrell Investments, Inc., 35 Cal.App.3d 796, 800–801, 111 Cal.Rptr. 122).  (Becker v. IRM Corporation, 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116;  see Goddard, California Landlord-Tenant Law and Procedure (6th ed. 1977, with April 1984 cumulative supp.) pp. 332–334.)

“Any departure from the fundamental principle involves the ‘balancing of a number of considerations;  the major ones are 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 injuries 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.  [Citations.]’ ”  (Becker v. IRM Corporation, supra, 38 Cal.3d 454, 467, 213 Cal.Rptr. 213, 698 P.2d 116, quoting Rowland v. Christian, supra, 69 Cal.2d 108, 112–113, 70 Cal.Rptr. 97, 443 P.2d 561;  Rosales v. Stewart, 113 Cal.App.3d 130, 134, 169 Cal.Rptr. 660.)

 Consequently, the general rule is that “a landlord in caring for his property must act toward his tenant as a reasonable person under all of the circumstances, including the likelihood of injury, the probable seriousness of injury, the burden of reducing or avoiding the risk, and his degree of control over the risk-creating defect.”  (Becker v. IRM Corporation, supra, 38 Cal.3d 454, 468, 213 Cal.Rptr. 213, 698 P.2d 116.)   Moreover, generally, where there is a duty to inspect for dangerous conditions in the exercise of due care, lack of awareness of the dangerous condition does not necessarily preclude liability.  (Id., at p. 469, 213 Cal.Rptr. 213, 698 P.2d 116.)   For,

“[a]lthough liability might easily be found where the landowner has actual knowledge of a dangerous condition ‘[t]he landowner's lack of knowledge of the dangerous condition is not a defense.   He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition.   And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ”  (Swanberg v. O'Mectin, supra, 157 Cal.App.3d 325, 330, 203 Cal.Rptr. 701.)

However, historically liability has not been extended “to a landowner for dangerous conditions on his land created by the lessee after the lessee took possession, unless the landowner had knowledge of the danger or participated in some way in creating it.”  (Thompson v. United States (9th Cir.1979) 592 F.2d 1104, 1109;  see Rosales v. Stewart, supra, 113 Cal.App.3d 130, 134–135, 169 Cal.Rptr. 660;  Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, 510, 118 Cal.Rptr. 741, et seq.;   see also Anaya v. Turk, 151 Cal.App.3d 1092, 1103, 199 Cal.Rptr. 187, disapproved on other grounds in Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 125–126, 211 Cal.Rptr. 356, 695 P.2d 653;  see generally, Goddard, California Landlord-Tenant Law and Procedure, supra, at pp. 334–335;  49 Am.Jur.2d, Landlord and Tenant, § 804.)   Moreover, in order to impose liability, “the landlord must also have [had] the opportunity and the ability to eliminate the dangerous condition ․ created by the tenant.”  (Rosales v. Stewart, supra, 113 Cal.App.3d at p. 134, 169 Cal.Rptr. 660.)   This final consideration is both temporal and pragmatic in character, as a common element underlying the various exceptions to the rule of nonliability of the landlord for injuries to third persons occasioned by the negligent conduct of a tenant or a dangerous condition arising after the tenant takes possession is the landlord's retention of “a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury.   In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act.”  (Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 511, 118 Cal.Rptr. 741;  Goddard, California Landlord-Tenant Law and Procedure, supra, at pp. 334–335.)

Here, the trial court relied on Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, 118 Cal.Rptr. 741, as authority for giving the cited jury instructions and rejecting Jendralski's proffered instructions.  Uccello involved an action against the landlord brought by an invitee who was injured by a tenant's vicious dog kept on the leased premises.   The court held “public policy requires that a landlord who has knowledge of a dangerous animal should be held to owe a duty of care only when he has the right to prevent the presence of the animal on the premises.   Simply put, a landlord should not be held liable for injuries from conditions over which he has no control.”  (Id., at p. 512, 118 Cal.Rptr. 741.)   However, the court continued:

“It should be emphasized that a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities.   Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required.  [Fn. omitted.]   For this reason we hold that a landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant's dangerous animal;  only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.”  (Id., at p. 514, 118 Cal.Rptr. 741;  see Lundy v. California Realty, supra, 170 Cal.App.3d 813, 821, 216 Cal.Rptr. 575.)

Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, 118 Cal.Rptr. 741, is inapposite.   There the court's determination actual knowledge was required on the part of the landlord of the presence of the dog and its dangerous propensities, was rooted in the historical doctrine a landlord who leases his property, surrenders virtual control of his land to the lessee absent an agreement to the contrary (id., at p. 510–511, 118 Cal.Rptr. 741), and the reality that harboring pets constitutes an important part of our way of life (id., at p. 514, 118 Cal.Rptr. 741).4  Unlike Uccello, this case involves not a domesticated, pet animal, but rather a wild monkey, the harboring of which constitutes an ultra-hazardous activity (BAJI Nos. 6.60, 6.65 (1975 rev.);   see generally Baugh v. Beatty, 91 Cal.App.2d 786, 792, 205 P.2d 671).   Unlike Uccello, the tenant here rented an apartment within a multi-unit complex managed by a resident tenant for the landlord/owner, not a separate, single-unit residential dwelling.   Further, the nature of the lease violation here of harboring dozens of birds and a wild monkey involved a danger not “transitory” and “easily-concealed” in character, but rather in light of its magnitude easily determinable.  (See Swanberg v. O'Mectin, supra, 157 Cal.App.3d 325, 331, 203 Cal.Rptr. 701.)   In other words, had the landlord in Uccello inspected the tenant's premises, he would have merely found an authorized, domesticated dog on the premises.   Under such circumstances, absent facts to put a reasonable person on notice of the dog's vicious tendencies, it would be unjust to impose liability on the landlord for injuries to third parties because the dangerous propensities of the dog are masked by its domestic character.   However, here, had the landlord (Black, the owner's resident manager) “inspected” the O'Campos' premises by merely knocking on the door and inquiring, he would have been immediately put on notice of the dangerous condition.

 Under these circumstances a landlord may be held liable for a dangerous condition of which he knew or should have known even though they are created by a tenant after taking possession of leased premises.   Here the monkey was presumed to be dangerous.   Its presence for several weeks was an ultra-hazardous activity conducted on the premises of a multi-unit apartment complex threatening the health and safety of the other tenants.   Moreover, such conduct violated the lease, permitting the landlord to take swift action to eliminate the dangerous condition.5  (See, e.g., Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, 512, 118 Cal.Rptr. 741.)   Under these circumstances, the standard to be applied is not just actual knowledge, but rather whether the landlord exercised reasonable care.  (BAJI No. 8.20 (1977 rev.).)

Lewis testified he observed “cages of birds” being carried into the O'Campo apartment shortly after the O'Campos moved in.   He further testified he saw the wild monkey in the O'Campo apartment at least two weeks before Jendralski was injured.   Jendralski testified she heard the wild animal noises for a period of three to four weeks before her injury and had told Black about the noises.   She stated he agreed to check it out.   Accordingly, there existed sufficient evidence for a trier of fact to conclude the wild animals made enough noise and were present in the O'Campo apartment for a sufficient length of time that had defendants exercised ordinary care they would have discovered the dangerous condition in time to eliminate it.6  It is reasonably probable a result more favorable to plaintiff would have been reached if BAJI No. 8.20 (1977 rev.) had been given.  (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243;  Dawkins v. City of Los Angeles, 22 Cal.3d 126, 135, 148 Cal.Rptr. 857, 583 P.2d 711;  Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d 512, 523–524, 196 Cal.Rptr. 82;  see Swanberg v. O'Mectin, supra, 157 Cal.App.3d 325, 332–333, 203 Cal.Rptr. 701.)

Disposition:

Judgment reversed.

I respectfully dissent.   Responsive to the mandate a trial judge must follow the law as announced by a higher tribunal (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937), the court correctly instructed the jury to find in favor of the plaintiff if the landlord knew “or must have known of the existence of a dangerous condition,” i.e., the tenants kept a wild monkey in the apartment.   The court relied on Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, 118 Cal.Rptr. 741, footnote 4, as authority for the questioned instruction.   The court properly rejected that proffered by the plaintiff which substituted a simple negligence standard, a duty to inspect the premises to determine the existence of the dangerous condition, as a measure of landlord liability for injury to others inflicted by a tenant-owned wild animal.   The majority enlarges landlord liability beyond the parameters established by the cases.

Uccello holds a landlord is under no duty to inspect premises for the purpose of discovering the existence of a tenant's dangerous animal;  only when the landlord has actual knowledge of the animal and the right to its removal does a duty of care arise.  Lundy v. California Realty (1985) 170 Cal.App.3d 813, 216 Cal.Rptr. 575, after a careful analysis of Uccello, restates the rule:

“An owner of a dog may be held liable for injuries inflicted by it on another person without any showing the dog had any especially dangerous propensities or that the owner knew of any such dangerous propensities.  (Civ.Code, § 3342;  Goldberg v. Rabuchin (1944) 65 Cal.App.2d 111, 114 [149 P.2d 861]․)  However to impose liability on someone other than the owner, even a keeper, ‘ “previous knowledge of the dog's vicious nature must appear.” ’   (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 41–42 [177 P.2d 51] ․ and cases cited, original italics.)”  (Lundy v. California Realty, supra, 170 Cal.App.3d 813 at p. 821, 216 Cal.Rptr. 575.)

The majority says Uccello is inapposite because “[t]his case involves not a domesticated, pet animal, but rather a wild monkey, the harboring of which constitutes an ultrahazardous activity.”   Since at least 1871, owner liability for injuries to third persons occasioned by domesticated animals with known dangerous or vicious tendencies has been equated with like injuries inflicted by wild animals.  Laverone v. Mangianti (1871) 41 Cal. 138, held the owner of a dog which he knows to be vicious keeps it at his risk and is responsible for any injury inflicted upon a person who is free from fault.   Rhodes, C.J. opined:

“It is insisted, on behalf of the defendants, that a person may lawfully keep a ferocious dog—one that is accustomed to bite mankind.   That position may be conceded, and it may also be conceded that he has the same right to keep a tiger.   The danger to mankind and the injury, if any is suffered, comes from the same source—the ferocity of the animal.   In determining the responsibility of the keeper for an injury inflicted by either animal, the only difference I can see between the two cases is, that in case of an injury caused by a dog, the knowledge of the keeper that the dog was ferocious, must be alleged and proven, for all dogs are not ferocious;  while in the case of a tiger, such knowledge will be presumed from the nature of the animal.   This knowledge, however established, whether by evidence or by presumption, is the same in substance, and works the same results.”  (Laverone v. Mangianti, supra, at p. 139.)

Gooding v. Chutes Co. (1909) 155 Cal. 620, 102 P. 819, concerned a camel that bit the plaintiff employee of the defendant owner of a zoo and affirmed a judgment for the plaintiff who did not know and had not been informed of the camel's vicious disposition as to which the owner was fully informed.

“It is the duty of one who owns or keeps domestic animals known to be vicious, to guard them ‘in such a manner as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animals as they are naturally inclined to commit.’  [Citation.]  This language is used in the authority cited with respect to the duty of an owner of wild animals, which are presumed to be ferocious.   The rule is the same, however, with regard to domesticated animals when they are in fact vicious, and their real nature is known to the owner or keeper thereof.”  (Gooding v. Chutes Co., supra, at pp. 624–625, 102 P. 819.)

Lindley v. Knowlton (1918) 179 Cal. 298, 176 P. 440, an aberrant in cases involving wild animals, affirmed a judgment against a defendant owner whose negligence permitted his chimpanzee to escape, in favor of a plaintiff mother who sued for damages on a negligence theory only for personal injury sustained because of fright occasioned by the chimpanzee's subsequent attack upon her two children.

Baugh v. Beatty (1949) 91 Cal.App.2d 786, 792, 205 P.2d 671, cited by the majority, holds the keeping of a wild animal constitutes an ultrahazardous activity.   There, a four-year-old boy was bitten by a chimpanzee confined in a cage so constructed as to permit the ape to reach through the bars which it did when offered a peanut by the boy.

“The court instructed the jury with respect to the liability of the keeper of a vicious or dangerous animal, known to be such by its owner.   Although plaintiff has not raised any objection to this instruction, it was not proper in the instant case since the animal was of the class of animals ferae naturae, of known savage and vicious nature, and hence an instruction on the owner's knowledge of its ferocity was unnecessary.”  (Baugh v. Beatty, supra, at pp. 791–792, 205 P.2d 671, fn. omitted.)

Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 283 P.2d 1033, affirmed a judgment for the defendant owner of a dog that jumped upon and knocked the plaintiff down.   Holding the liability of the keeper of the dog is absolute, the court cited Opelt v. Al. G. Barnes Co. (1919) 41 Cal.App. 776, 779, 183 P. 241, for “ ‘[t]he gist of the action is not the manner of keeping the vicious animal, but the keeping of him at all with knowledge of the vicious propensities.  [Citation.]  In such instances the owner is an insurer against the acts of the animal, to one who is injured without fault, and the question of the owner's negligence is not the case.  [Citations.]’ ”  (Hillman v. Garcia-Ruby, supra, 44 Cal.2d at p. 626, 283 P.2d 1033.)

Williams v. Goodwin (1974) 41 Cal.App.3d 496, 116 Cal.Rptr. 200, reversed a nonsuit holding a plaintiff injured by a trespassing bull was entitled to a jury determination on issues involved in applicability of the doctrine of strict liability:

“We hold therefore that the infliction of personal injury by a bull upon an occupier of land, as the direct result of trespass by the bull upon that land, is within the scope of the risk of harm created by the trespass because it is obviously predictable and reasonably to be expected as a result of such a trespass.   The rule expressed is consonant with the commonly acknowledged purpose of the application of strict liability to such cases, i.e., to allocate the burden of harm, in circumstances where damage of some sort is virtually inevitable, to the one having possession and control of the animal.”   (Williams v. Goodwin, supra, at p. 507, 116 Cal.Rptr. 200.)

Witkin concludes the owner or possessor of a dangerous animal, whether wild or domestic, is absolutely liable for injuries inflicted by it where he knows or should know of its dangerous propensities.   He points out knowledge of such propensities must be proved in the case of domestic animals but is presumed in the case of wild animals.  (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 794, pp. 3090–3091.) 1

Counsel have not cited and I have not found any California cases dealing with landlord liability in the circumstances presented here.   The general rule as to domestic animals appears to be the landlord is not liable for attacks by such domestic animals kept by the tenant where the landlord has no knowledge of the animal or its dangerous proclivities at the time of or subsequent to the letting of the premises.  (Annot., Landlord's Liability to Third Person for Injury Resulting from Attack By Dangerous or Vicious Animal Kept by Tenant (1977) 81 A.L.R.3d 638, 639–640.)   However, when the landlord subsequent to the letting learns of the dangerous proclivity of the animal and has the ability to abate the hazard by terminating the tenancy or otherwise, the landlord is subject to liability occasioned by his want of ordinary skill or management of the demised premises.  (Lundy v. California Realty, supra, 170 Cal.App.3d 813 at p. 821, 216 Cal.Rptr. 575;  Uccello v. Laudenslayer, supra, 44 Cal.App.3d 504, 118 Cal.Rptr. 741.)   The cases do not distinguish between domestic animals with dangerous or vicious proclivities and wild animals in declaring the absolute liability of an owner for injuries occasioned by such animals.   It follows the liability of the landlord as to injuries occasioned by a wild animal is no different from liability for injuries inflicted by a domestic animal with dangerous or vicious proclivities known to the landlord.

Domestic animals, qua animals, must be proven to possess dangerous or vicious propensities while wild animals are presumed to be of that persuasion.   Upon proof of such propensities in the domestic animal, both creatures are similarly situated with respect to landlord liability.  Uccello and Lundy hold the landlord liable where he has actual knowledge of the domesticated animal's propensity and the power to remove the beast.   It follows that the presumed knowledge of the wild creature's propensities requires the same result.

The trial court here correctly instructed the jury in order to impose liability, they must find the landlord had actual knowledge of the presence of the wild monkey in the apartment.   The majority would impose landlord liability in these circumstances on the basis of simple negligence, a theory considered and rejected by our courts in carefully reasoned opinions.   I am unable to assist in the birth of this new tort and would affirm the judgment.

FOOTNOTES

1.   Lewis testified he saw the O'Campo's carrying “cages of birds” into their apartment shortly after they moved into the apartment complex;  he was in their apartment approximately two weeks before Jendralski was injured and saw dozens and dozens of birds and the monkey running loose in the apartment.

2.   The O'Campos vacated the apartment before July 1979 in breach of their one-year lease agreement.   Black attempted unsuccessfully to contact them at a telephone number they had left on the tenant-reference form.

3.   The proffered instruction read:  “The lessor of premises is not liable for an injury suffered by a person on his premises which resulted from a dangerous condition of which the lessor had no knowledge, unless the condition existed for such a length of time that if the lessor had exercised reasonable care in inspecting the premises he would have discovered the condition in time to remedy it or to give warning before the injury occurred.  [¶] Nor may the lessor be held liable if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or give reasonable warning or to provide reasonable protection.”

4.   The court in Swanberg v. O'Mectin, supra, 157 Cal.App.3d 325, 332, 203 Cal.Rptr. 701, explained:  “Because said loss of control includes the right of a landlord to reenter the property without the lessee's permission, short of abridging the latter's right of quite enjoyment, amongst other privacy law considerations, the landlord is in no position to reliably determine whether or not a tenant/lessee is harboring a dangerous animal.  [Fn. omitted.]”

5.   Black testified that it would have been his duty to investigate the O'Campo's apartment had Jendralski reported hearing the strange noises.   He disputes Jendralski's testimony that she did report those noises because “․ I didn't go there, ․ I didn't check it out.   And I know from that that that conversation could never have taken place.”   However, the erroneous instructions required the jury to find no liability even if it believed Black simply failed to follow up Jendralski's report, in violation of his admitted duty.

6.   Defendants reliance on Civil Code section 1954 limiting the right of a landlord to enter a tenant's premises is misplaced, as that section would not prohibit inquiry by a resident manager as followup on another tenant's complaint regarding the tenant's conduct on the leased premises.

1.   See Annotation, Owner's or Keeper's Liability for Personal Injury or Death Inflicted by Wild Animal (1968) 21 A.L.R.3d 603, for variations on the theme of absolute liability.

WORK, Associate Justice.

STANIFORTH, Acting P.J., concurs.

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