The court here took judicial notice of the fact that gangs are territorial, and will establish and protect certain "turf," and that the presents of gangs often begets violence. Nevertheless, the court concluded that the apartment owed no duty to forseeable victims of violent protective activity gangs that gangs basing themselves on apartment property might carry out on other property. Nevertheless, it viewed California precedent as restricting any duty of the landowner to prevention of criminal activities on the landowner's own premises. It distinguished a case in which a landlord was held liable for failure to evict a tenant who used the back yard of the rental as a shotgun shooting range. Tenant's shots fired from the premises wounded someone off premises. Even though, in this case, it was alleged that the gang gathered at the apartment complex because one or more of its members resided there, the court concluded that the California courts simply viewed the boundary of the property as an absolute boundary of liability.
A dissenting judge in this 2-1 decision cites the Restatement of Torts Sections 364 to 370, which would impose liability on landowners for creation or toleration of conditions that create known risks of injury occuring on nearby premises.
Comment: California courts clearly are in disarray on this issue. Several years ago, a California court held that adjacent landowners stated a cause of action in nuisance against the San Francisco Housing Authority when they alleged that the Authority had failed to take steps to insure that criminal elements did not frequent its premises, either as tenants or visitors. In that case, the alleged injury was depreciation in property values resulting from criminal acts primarily off the Housing Authority's premises. Lew v. Superior Court, 25 Cal. Rptr. 2d 42 (Cal. Ct. App. 1993). Very recently, a California appeals court found that a landowner was liable for failing to protect persons on his property from stepping onto a hazardous condition consisting of a water meter cover located on property owned by a public water department where the landowner's property surrounded the water department property. Alcaraz v. Vece, 46 Cal. Rptr. 2d 571 (Cal. App. 1995). The dissent does not cite these cases. Is it possible that the plaintiff's counsel just missed them?
For two New York cases also finding for the landowner, see Palmer v. Prescott, 617 N.Y.S.2d 411 (N.Y. App. Div. 1994): Shire v. Ferdinando, 555 N.Y.S.2d 151 (N.Y. App. Div. 1995).
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