Daily Development for
Friday, August 22, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDOWNER LIABILITY; LIABILITY FOR INJURY ON ADJACENT PROPERTY: Divided California Supreme Court holds that landowner is liable for injury caused by defective cover on city water meter located on city owned property adjacent to landowner's premises where landowner has "exercised" control over the city owned property by mowing the lawn.

Alcaraaz v. Vece, 60 Cal. Rptr. 2d 488 (Cal. 1997)

Plaintiff, a tenant in defendant landlord's house for over twenty years, was injured when he stepped on a defective cover over a water meter located in a two foot strip of property between the public sidewalk and defendant's property. The plaintiff did not argue here for liability on the basis upon the landlord/tenant relationship, but rather on the basis of landowner liability generally.

The trial court granted summary judgment for the defendant, and the court of appeals reversed and remanded for a trial on the question of whether landowner exercised possession and control over the strip. If he did exercise such possession and control, the trial court concluded, the landlord could be liable, as other evidence showed that he had actual knowledge of the defective cover. The court of appeals case is discussed in the Daily Development for February 23, 1996, on the Website: http://cctr.umkc.edu/dept/dirt.

On appeal to the California Supreme Court: held: Affirmed (4-3). Simple acts of control are sufficient to establish a duty of care with respect to known hazards on the land of another.

The degree of control exercised by defendant in this case consisted of mowing the lawn on the two foot strip. Otherwise, the strip was unfenced and unoccupied, although, presumably, members of the general public, including defendant, his agents and invitees, crossed over it regularly. After the accident occurred, the defendant apparently erected a picket fence around his property and enclosed the city's two foot strip within that fence.

The court commented specifically on the sufficiency of this evidence. Mere mowing of the lawn, the court acknowledged, is not necessarily possession of property. It can be a "neighborly accommodation." Nevertheless, evidence of such acts is "highly relevant" on the issue of control and should be submitted to the jury. Similarly, the court acknowledged that building a fence around the property after the even does not indicate conclusively that the defendant controlled the property at the time of the event. Again, however, the court concludes that this act is relevant to the overall question of control.

Judge Mosk joined the majority, but specially concurred on different grounds, maintaining that liability also could be predicated on the duty of a landowner to take care to prevent injury from known dangers on appurtenances to the landowner's property that were located there for the landowner's benefit. Judge Baxter, in dissent, apparently disagrees with Judge Mosk that the meter box "benefitted" the landowner. The opinions do not disclose whether the meter metered the defendant's property and whether the box contained only a meter for that property. The judges seem to assume that this is the case, but disagree on the significance of that fact.

The dissenters certainly dispute the majority's conclusions as to the sufficiency of the evidence to establish defendant's control over the two foot strip. But they generally dispute also the notion that there can be liability for hazards on the property of another when there is no legal right to exercise any control over that property. Outside of cases involving appurtenances for the specific benefit of the landowner (which all judges appear to concede likely would impose a duty), the dissenters maintain that existing authority imposes no duty when there is no legal right to possession or control, and that there is no warrant for extending the law in this area.

Comment 1: Although the city probably didn't mind that the defendant mowed the land around it's meter box, had it really conferred an right to control over the box itself? What would the city have thought of the defendant's putting a lock on the meter box lid to prevent it from being removed? What would it had thought of the defendant's putting a flower box or statute on top of the meter cover to increase visibility? Wasn't in fact, the city still in complete legal control of the meter box?

Comment 2:One could argue that liability was predicated on the duty to make the surrounding area safe, and not the box itself, but this doesn't really explain the court's emphasis on the two foot strip, since the duty in that case could be as easily based upon the landowner's ownership of property within a foot of the box.

Comment 3: The editor is sympathetic with the majority's view that one who exercises clear acts of control over a piece of ground ought to have liability to warn his invitees against known hazards on that ground. But the evidence on control in this case is so flimsy that the court, by submitting the case to the jury, is virtually inviting the jury to engage in "insured injury bingo." This is the kind of "giveaway jurisprudence" that the California courts have been criticized for in the past. Now the criticism comes even from within the ranks. The dissenters are unstinting in their expressions of distaste for the majority view here.

For similar cases imposing no liability, see: Palmer v. Prescott, 617 N.Y.S.2d 411 (N.Y. App. Div. 1994) (restaurant owner not liable for injury caused by icy conditions on neighboring land where restaurant customers parked.) Evans v. Koshgarian, 602 N.E.2d 27 (Ill.App.Ct. 1992). (An abutting owner or occupier does not assume control over a sidewalk or parkway merely because the majority of users may be customers or because the owner or occupier gratuitously sweeps, shovels or salts it.)

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications 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. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.