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.
Readers are encouraged to respond to or criticize this posting.
Items reported on DIRT and in the ABA publications related to it are for general
information purposes only and should not be relied upon in the course of
representation or in the forming of decisions in legal matters. The same is true
of all commentary provided by contributors to the DIRT list. Accuracy of data
provided and opinions expressed by the DIRT editor the sole responsibility of
the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a source that is readily
accessible by members of the general public, and should take that fact into
account in evaluating confidentiality issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious real estate professionals.
Message volume varies, but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message Help to the listserv
address.
DIRT has an alternate, more extensive coverage that includes not only commercial
and general real estate matters but also focuses upon residential real estate
matters. Because real estate brokers generally find this service more valuable,
it is named “BrokerDIRT.” But residential specialist attorneys, title insurers,
lenders and others interested in the residential market will want to subscribe
to this alternative list. If you subscribe to BrokerDIRT, it is not necessary
also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to
the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT
to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association Section on Real Property,
Probate & Trust Law and the University of Missouri, Kansas City, School of Law.
Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of
Law, UMKC School of Law, but Professor Randolph grants permission for copying or
distribution of Daily Developments for educational purposes, including
professional continuing education, provided that no charge is imposed for such
distribution and that appropriate credit is given to Professor Randolph, DIRT,
and its sponsors.
DIRT has a WebPage at:
http://www.umkc.edu/dirt/
Members of the ABA Section on Real Property, Probate and Trust Law or of the
National Association of Realtors can subscribe to a quarterly hardcopy report
that includes all DIRT Daily Developments, many other cases, and periodic
reviews of real estate oriented literature and state legislation by contacting
Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org
-----
To be removed from this mailing list, send an email message to
listserv@listserv.umkc.edu with the text SIGNOFF BROKERDIRT.
Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.