Daily Development for Monday, October 4, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

The Reporter for this item was Professor Roger Bernhardt of the Golden Gate Law School, San Francisco, writing in the California Real Property Reporter.

LANDOWNER LIABILITY; PRIVATE ROADS: Property owners association and its private security company had no affirmative duty to prevent resident from driving on community road while intoxicated.

Titus v Canyon Lake Prop. Owners Ass'n., 13 Cal. Rptr. 3d 807 (Cal. App. 2004)

Incorvia, while intoxicated, drove a car off the road and into a tree in the private community of Canyon Lake. Hauser, his passenger, was killed. Hauser's child sued, among others, the Canyon Lake Property Owners Association (Association) and Barton Protective Services, which had been hired by the Association to provide security. The claim was for damages for the mother’s death based on premises liability. Plaintiff alleged that Incorvia, who lived in Canyon Lake with his father, had previously been ticketed, arrested, and/or convicted of speeding and other moving violations, evading arrest, possession of controlled substances, public drunkenness, trespassing, being under the influence of controlled substances, furnishing methamphetamine to minors, and reckless and erratic driving; and that the Association and Barton "did nothing to curtail or prevent" such conduct. The trial court sustained the demurrers of the Association and Barton without leave to amend, finding that neither defendant had the ability to stop Incorvia from driving or had a duty to do so.

The court of appeal affirmed, finding that no "special relationship" existed between the Association, Barton, Incorvia, and the residents of Canyon Lake that would give rise to the proposed duties. The court rejected the argument that the Association and Barton had a duty to affirmatively act to protect Hauser from the risks created by allowing Incorvia to drive within Canyon Lake. Analyzing the variety of factors and policy considerations relevant to the determination of whether duty requires taking action to protect someone from the conduct of others, the court pointed out that any connection between the defendants and the injury-producing event was tenuous at best: Neither defendant created the peril of Incorvia's driving while intoxicated because they did not provide Incorvia with the car or the alcohol; neither defendant caused Hauser to become a passenger in Incorvia's car; and Incorvia's conduct prior to the accident did not present a "high degree of foreseeability" of harm to community residents.

As to the Association, the court found that it had no duty to "eject" Incorvia from Canyon Lake. The court stated that, although the community's CC&Rs created affirmative obligations to provide for security within the community, those obligations did not, without more, create a "special relationship" requiring the Association to affirmatively act to protect community residents from Incorvia. The court also stated that the burden on the Association of "ejecting" Incorvia, and the consequences to the community of that burden, weighed heavily against imposing such a duty. The court distinguished the duty imposed on a landlord by Madhani v Cooper, 106 CA4th 412, 130 CR2d 778 (2003) , pointing out that the duty to eject a resident of a private community was substantially more burdensome than "mere eviction" of a violent tenant from an apartment building.

As to Barton, it had no affirmative obligation to arrest or detain whenever it suspected someone was violating, or might violate, a community rule.

Reporter’s Comment: The language of this decision is going to be frequently quoted by landlords when they are sued for personal injuries caused by the acts of their tenants. The court's analysis of the burden of imposing a duty of care is sure to have appeal in a plethora of situations.

In a case where, for instance, the tenant harmed the plaintiff and is shown to have been dangerous in the past, the landlord is likely to claim-as this homeowners association asserted-that evicting that tenant before the event "violates his constitutional rights to live with his family," which-as the court said - is bad public policy, even if it is constitutional. 118 CA4th at 915. (And according to some, it would be even worse public policy to evict the entire family based on the bad acts of one of its members, even if that is our current federal policy in public housing. See HUD v Rucker, 535 US 125, 152 L Ed 2d 258, 122 S Ct 1230 (2002). Additionally, in a situation where the location is not essential to the wrongfulness of the act, this court's shrewd observation that a drunken driver can still do harm regardless of where he resides will be cited by landlords not only when violent tenants do harm, but also when their pit bulls bite children, inside or outside of the building.
See Yuzon v Collins, 116 CA4th 149, 10 CR3d 18 (2004).

On the other hand, the court's observations were made in the context of a homeowners association, whose remedy against undesirable occupants is ejectment rather than unlawful detainer. We now must wait to see how much the balancing changes when the injury occurs in a rental apartment building rather than a planned community.

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