What is the Limit of Premises Liability in California?
In the recent decision in Moses v. Pascale Roger-McKeever, the appellate court considered the limit of premises liability in California.
Plaintiff Eleanor Moses slipped and fell on a walkway outside the condominium rented by defendant Pascale Roger-McKeever after attending an event hosted by Roger-McKeever.
Moses filed a complaint against Roger- McKeever for premises liability.
After the trial court granted Roger- McKeever’s motion for summary judgment, Moses appealed.
The appellate court concluded that Moses did not raise a triable issue of material fact as to whether Roger- McKeever owed her a duty of care to protect her against the allegedly dangerous condition of the walkway, and the judgment was affirmed.
On an evening in 2018, Roger-McKeever hosted a small gathering for members of a political activist group at a condominium she rented in Albany. Moses was one of the attendees.
Two years later, Moses filed a personal injury complaint for a slip and fall that allegedly occurred on or near the entryway steps to Roger-McKeever’s condominium that night.
Moses alleged in the complaint that while she was on the premises, Roger-McKeever was aware of—or should have been aware of—and negligently allowed a dangerous condition to exist causing Moses to suffer serious injuries.
In April 2021, Roger-McKeever filed a motion for summary judgment on the ground that Moses could not establish one or more elements of her premises liability claim.
Roger-McKeever first argued that she did not owe a legal duty to Moses because the slip and fall occurred in a common area or on the public sidewalk, areas that were not under Roger-McKeever’s responsibility or control.
She further contended that, even if her legal duty extended to the area where the slip and fall occurred, she could not be held liable because she did not have actual or constructive notice of the allegedly dangerous condition that caused the fall.
In particular, she had no involvement in the construction, maintenance, or repair of the walkway. Moreover, she had been living at the condominium for several years and the walkway steps had been in regular use during that time by numerous guests, yet no one had ever complained to her about the condition of the steps or the lighting in the entryway.
Finally, Roger-McKeever argued that there was no evidence that she acted or failed to act so as to cause Moses’s injuries.
In opposition, Moses argued that there were issues as to whether Roger-McKeever was on actual or constructive notice that the stairs leading up to her condominium was in an unsafe condition, and therefore Roger-McKeever owed a duty of care to Moses.
In support, Moses provided her declaration stating that, upon her arrival to Roger-McKeever’s condominium, she mentioned to Roger-McKeever that the entryway was dark. Roger-McKeever acknowledged the issue and was apologetic indicating that there was an electrical problem with the porch light.
According to Moses’s declaration, Roger-McKeever explained that her landlord had not been responsive in repairing the light. A photograph attached to the declaration depicted three steps leading up and away from a street sidewalk and to a short walkway that ended at a door to Roger- McKeever’s condominium (the entryway or walkway).
Moses stated in her declaration that when she was leaving the condominium, she was not able to see the second step and lost her footing and fell.
She also provided a declaration from a mechanical engineer, who opined that the steps were “grossly” out of compliance with applicable building code, and that the absence of a handrail and the riser heights of the steps were probable causes of the accident.
The court granted Roger-McKeever’s summary judgment motion finding that Roger-McKeever made a prima facie showing that she was a tenant of the condominium who did not have control over the entryway steps or the outside lighting where Moses was injured, and thus she had no duty to maintain or repair that area.
The court also concluded that Roger-McKeever did not have a duty to warn Moses because she did not have prior notice that the steps were a “non-obvious” dangerous condition of the premises beyond the obvious danger of falls all stairways present.
The elements of a premises liability claim such as the one at issue in the case are: a legal duty of care; breach of that duty; and proximate cause resulting in injury.
Every person has a duty to exercise, “in the management of his or her property or person,” reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)
This duty is not absolute; a defendant generally does not have an affirmative duty to protect others when he or she has not created the peril or increased the risk of danger.
The proper test to be applied to the liability of the possessor of land in accordance with Civil Code section 1714 is whether in the management of one’s property one has acted as a reasonable person in view of the probability of injury to others.
This duty is not limited to one who holds title over the land but, rather, is owed by the person in possession of the land because of the possessor’s supervisory control over the activities conducted upon, and the condition of, the land.
To comply with this duty, the possessor of land must inspect the premises or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.
However, a defendant cannot be held liable for the defective or dangerous condition of property which it does not own, possess, or control.
Thus, a tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition.
It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.
The crucial element is control.
Roger-McKeever argued that the duty of care she owed Moses did not extend to the walkway because she did not own, possess, or control the walkway, which was outside the premises she leased.
Moses argued, in contrast, that the evidence showed Roger-McKeever had control over the walkway, and, even if she did not have control, she still owed Moses a duty of care because she “impliedly adopted” the walkway by inviting Moses to her condominium.
In Alcaraz, California's supreme court clarified the standard for determining when a party who does not own land has a duty to warn of or remedy dangerous conditions on that land, focusing on the requirement that a defendant “control” the area where the plaintiff’s injury occurred. The case concerned a tenant who suffered injury when he stepped into a water meter box located in the lawn in front of the rental property he occupied.
The landlord defendants did not own or control the meter box, and the city owned the narrow strip of land where the meter box was located. On appeal from summary judgment in favor of the defendants, the parties disputed whether the defendants exercised control over the narrow strip of land such that they had a duty of care to protect against dangerous conditions on that strip of land.
The evidence showed that the defendants maintained the lawn that covered the narrow strip of land and that they constructed a fence that enclosed the entire lawn, including the strip of land.
The court found that a triable issue of material fact existed as to whether the defendants exercised control over the strip of land, and that if the defendants did exercise control, they had a duty to protect or warn the plaintiff of the allegedly dangerous condition of the property.
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, and possession, in turn, is equated with occupancy plus control.
In determining what constituted “control,” the court held that performing “minimal, neighborly maintenance of property owned by another” generally will not on its own constitute an exercise of control giving rise to a duty to protect or warn persons entering the property.
It concluded, however, that the defendants’ act of constructing a fence surrounding the strip of land at issue was sufficient to raise a triable issue of material fact on the issue of control because it showed that the defendants treated the strip of land as their own and as an extension of their front lawn.
But absent evidence that a tenant exercised “actual” control of that portion of the premises where the plaintiff was injured, a tenant will not be held liable for the plaintiff’s injuries where the lease does not confer a right of control.
To establish a tenant’s duty of care where the lease does not confer upon him or her a right to control that portion of the land that caused the plaintiff’s injury, there must be a showing that the tenant took some affirmative action to assume responsibility for the safe condition of that portion of the land.
Roger-McKeever argued in the trial court, as she does here, that she was not liable for Moses’s injuries because they occurred on the walkway and walkway steps outside the condominium she leased, and she was not responsible for repairing or maintaining the walkway.
On appeal, Moses dods not contend that Roger-McKeever owned the walkway, that her lease conferred upon her a right to maintain and repair the outside lighting or the walkway steps, or that she assumed responsibility for the safe condition of the walkway.
Moses’s primary argument is that despite Roger-McKeever’s lack of control over that area, Roger-McKeever owed her a duty of care because Roger-McKeever impliedly adopted the walkway by inviting Moses to her condominium.
Moses has not shown that the allegedly dangerous conditions arose in the scope of a special relationship between her and Roger-McKeever such that Roger-McKeever had an affirmative duty to protect her against risks of harm that Roger-McKeever did not contribute to or create.
Imposing a duty of care in this case simply because Roger-McKeever invited Moses to her condominium, would essentially create a rule making all tenants responsible for hazardous conditions in surrounding public spaces, even when such spaces are not under their control.
We cannot conclude on these facts that Roger-McKeever had a duty to protect Moses from dangerous conditions she did not create on land she did not own or control.
In sum, a residential tenant having no ownership or control over common areas leading to the tenant’s dwelling place generally has no duty of care to protect invitees against the dangerous condition of those areas.
Because Moses had not shown that a triable issue of material fact exists regarding Roger-McKeever’s ownership or control over the common walkway, walkway steps, and lighting, she DID not established error in the trial court’s finding that Roger-McKeever did not owe Moses a duty of care under Civil Code section 1714.
LESSONS:
1. The elements of a premises liability claim such as the one at issue in the case are: a legal duty of care; breach of that duty; and proximate cause resulting in injury.
2. Every person has a duty to exercise, “in the management of his or her property or person,” reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)
3. This duty is not absolute; a defendant generally does not have an affirmative duty to protect others when he or she has not created the peril or increased the risk of danger.
4. Thus, a tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition.