No Duty to Warn Tenant of Obvious Water Current (Nicoletti v. Goldrich Kest)

 

Landlord had no duty to warn of open and obvious condition of water current from flowing rainwater

The Second District, Division Eight has upheld a grant of summary judgment by the Hon. Daniel Crowley, Judge Presiding, of the Los Angeles Superior Court in a tenant versus landlord tort suit. (Nicoletti v. Goldrich Kest (November 14, 2023) B319377.)  Summary judgment was granted in favor of the landowner based on the defense that the hazard was an "open and obvious" condition.  Plaintiff Nicoletti allegedly fell due to a rainwater current while walking a dog on the premises she rented from defendant Dolphin Marina apartments, sued as the DBA of Goldrch Kent:

On April 9, 2020, Nicoletti took her neighbor’s dog for a walk around Dolphin’s apartment. . . . Nicoletti observed that it was raining that day with thunderstorms. At around 3:30 p.m., Nicoletti crossed the driveway of the North Side Gate entrance that led to the underground parking lot. The apartment complex also had a South Side Gate entrance and another entrance on Panay Way. Nicoletti testified that she had gone past the North Side Gate “thousands of times” before the incident.

Before crossing, Nicoletti observed that the concrete on the North Side Gate driveway was wet, and rainwater formed a current that was running down the driveway. Nicoletti did not observe any caution tape or other warning advisements. Nicoletti proceeded to cross, and the rainwater current knocked her down. Nicoletti then fell down the North Side Gate driveway and hit the gate at the bottom of the driveway. (Id., p. 2.)

The trial court found Dolphin did not have a duty to warn of the running rainwater on the driveway because it was a dangerous condition that was sufficiently obvious.  Dolphin countered  the danger from the water current was not obvious, but the trial court nonetheless granted summary judgment.  

The appellate court affirmed, noting the general rule that landowner must “maintain land in [its] possession and control in a reasonably safe condition.” (Alcaraz v. Vece (1997) 14 Cal. 4th 1149, at 1156; emphasis added.)  However, it also reiterated that "[a] harm is typically not foreseeable if the “dangerous condition is open and obvious," citing Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, at 446.

Upon appeal, Nicoletti further argued that an exception to this doctrine applied, namely that of "necessity."  The appellate court noted this argument was waived as it was first made upon appeal; nonetheless, the Nicoletti court considered and rejected this argument.  Writing for the majority, Justice Viramontes explained the "necessity" argument was not supported by the facts, and, more to the point, public policy indicated no duty should be imposed to place "warnings" due to temporary weather conditions:

Our holding is also consistent with our Supreme Court’s declaration that courts must assign tort duties “to ensure that those ‘best situated’ to prevent such injuries are incentivized to do so.” [Citation.]  Under these circumstances, Nicoletti was in a better position to avoid the obvious danger of walking across a current of water that formed as a result of a rainstorm that began that same day. As discussed above, Nicoletti could have chosen to use a different entrance. The burden imposed on Dolphin to constantly monitor weather conditions and immediately install warning signals is outweighed by Nicoletti’s ability to avoid a condition she should have observed as obviously dangerous. (Id., p. 9.)

Counsel for plaintiffs should note the obvious lesson that arguments destined for a Court of Appeal should first be made in the trial court.  

Defendants should be prepared to argue the applicability of the "necessity" exception to the open and obvious rule.  The defense should also be keen to address public policy issues, such as the scope of the duty the plaintiff seeks to impose, an example being the duty proffered here by the plaintiff, namely, that the landlord should have warned of the current due to the heavy rain that day.

Condo tenant owes no duty to visitors to remedy defect in common area (Moses v. McKeever)

 

Appellate court rejects claim tenant owes a duty to visitors because they have “implied control” over the porch owned by the homeowner association

The First District has held a tenant who does not have express control over the common area in a condominium association does not have a duty to either maintain this area or warn his invitees of any defective or dangerous condition. (Moses v. McKeever (May 5, 2023) A164405,)  As Justice Swope explained, the scope of the duty owed by a tenant as to common areas was dispositive and plaintiff Moses therefore could not state a claim for negligence.  In summary, Moses found the defendant tenant was entitled to summary judgment as to the entire complaint.

Plaintiff brought her claim after she fell while leaving the defendant’s residence:

. . . [Plaintiff] 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. (Moses, p. 3.)

Defendant maintained that, as a tenant, he had no duty to control the area outside his leased premises, especially as the lease gave him responsibility for maintaining any area outside the actual unit.  The trial court granted summary judgment in his favor and plaintiff appealed.  The appellate court upheld the judgment in favor of the defendant/tenant. [1]

  

Specifically, Moses found that a tenant whose lease gives neither the right nor responsibility to maintain a “common area” does not owe a duty to prevent or warn regarding any dangerous conditions over which the tenant has no control.  This is true even as to someone  invited to the premises, such as plaintiff.

  

Even under the most expansive view of duty, some sort of "control" of the premises is necessary to impose liability

Moses distinguished prior case law such as Alcarez v. Vece (1997) 14 Cal. 4^th 1149.  While ownership certainly is an indicia of control, lack of ownership does not absolve a defendant of responsibility for areas which over which they may exercise at least some control.  Plaintiff Alcarez fell upon a landscaped area whose ownership was unclear; however, whether or not the defendant owned this area or not, he owned the land adjoining this area.  Justice George wrote for a four to three majority which found an adjoining landowner potentially liable for a slip and fall despite lack of clear ownership where the landowner’s agents mowed the lawn and otherwise may have had some sort of “control” over this area.

  

Alcarez, of course, has led to a plethora of attempts by the plaintiffs’ bar to expand liability to include adjoining landowners to situations that are, under any logical analysis, patently unfair.  Indeed, Alcarez is often cited as providing for liability so expansive such includes not only the actual landowner but also someone who owns or maintains the premises adjacent to the area where plaintiff suffers harm. [2]

 

Unfortunately, trial courts often take this gambit and cite to Alcarez as a reason to not give full consideration to an adjoining tenant or landowner’s request for summary judgment, misreading Alcarez as providing for at least potential liability merely because the maintenance of one property might somehow spill over to the adjoining premises.  This includes, for example, landscape maintenance extending just beyond the property line.  This is so despite the fact Alcarez said:

. . . [T]he simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. (14 Cal. 4th at 1167.)

  

The problem, of course, is that in Alcarez the Supreme Court undermined this limitation by immediately adding, “[b]ut it cannot be doubted that such evidence is relevant on the issue of control,” strongly implying that whether such “neighborly maintenance” constitutes “control” is a factual issue. (Id.)  This in turn means a landowner foolish enough to tempt liability by performing such a neighborly act must therefore undergo the time and expense of a trial simply because they have performed a good deed and therefore cannot obtain dismissal by a motion for summary judgment. 

However, in Moses the Hon. Delbert C. Gee of the Alameda County Superior Court did not agree with plaintiff’s overly-broad interpretation of Alcarez. The appellate court unanimously affirmed the grant of summary judgment, readily distinguishing Alcarez and the other case law cited by the plaintiff.  Moses makes clear that any liability based upon Alcarez still requires the plaintiff show the crucial element of control. 

 

Therefore, contrary to what plaintiff argued, Moses held the possibility the defendant could have prevented the harm on the adjoining area controlled by another is not sufficient to impose liability:

To establish a duty of care under Alcaraz, it is insufficient to speculate that Roger-McKeever could have taken certain actions to prevent injury to Moses without showing that Roger-McKeever had actual control over the area where the injury occurred. “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine the general rule that a defendant is not liable for failing to protect the potential victim if he or she did not contribute to creating the risk. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 214.) (Moses, p. 12.)

Moses rejected the idea inviting plaintiff meant the defendant "impliedly adopted" the area where plaintiff fell

Given that plaintiff could show no actual  control over the common-area plaintiff stressed that the circumstances showed “implied” control:

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, p. 11.)

Moses therefore considered Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal. App. 5th 843, which had found that where a contractor had “impliedly adopted” the premises of a commercial enterprise, said enterprise could be held liable for the negligence of its contractor.  However, Moses found that even if such a precedent was correctly decided it should be limited to a "commercial" context:

We have not found, and the parties have not provided, any cases that extend Hassaine’s “impliedly adopted” rule to non-commercial contexts. Moreover, even in cases involving a commercial enterprise, “control” is still a required element where the business invitee was injured outside the business premises. [Citation.] (Moses, p. 16.)

A crucial difference, of course, between a tenant in a residential context and the operator of a business is the “special relationship” between the business and its patrons. (Moses, pp. 16-17.) [2]   Defendant in Moses therefore owed plaintiff no duty of due care to have prevented or warned about the harm from the porch step, making it irrelevant that plaintiff that submitted evidence supposedly showing defendant knew the lack of lighting on the porch was "dangerous."  Likewise, the fact the common area was allegedly out of compliance with the relevant building code did not expand the scope of the tenant’s duty to maintain the area he leased, tenant being a mere leaseholder and not an owner. [3]

1 - Apparently the owner of the condominium was not a party to the suit at the time the tenant brought his motion.
2 - Alcarez may be the case most miscited by the California Plaintiffs’ Bar.  This is in terms of 1) misleading the trial court as to the facts in Alcarez, and 2) brazen attempts to apply its holding to situations where its rationale cannot possibly apply.  Such arguments ignore both public policy and the extensive discussion in Alcarez, which does not contemplate an expansion of tort liability to include all adjoining landowners.
3 - The question arises as to the potential liability of the owner of the condominium.  An owner may have less knowledge as to the lack of lighting in the common area outside the unit than would a tenant supposing, for example, that a lighting fixture owned by the association has just malfunctioned.  Still, a court might find the owner of the premises, as opposed to a tenant, has a greater duty to communicate with the association as to known defects.  Indeed, the CC&Rs (Codes, Covenants, and Restrictions) of the association may be pertinent to show the responsibilities of the individual unit owners versus the association.