Alcaraz v. Vece

• Citation: 929 P.2d 1239,14 Cal.4th 1149,60 Cal.Rptr.2d 448
• Decision Date: 31 January 1997
• Docket Number: No. S050761,S050761
• Court: United States State Supreme Court (California)
• Parties: , 929 P.2d 1239, 97 Cal. Daily Op. Serv. 786, 97 Daily Journal D.A.R. 1105 Gilardo C. ALCARAZ, Plaintiff and Appellant, v. Peter VECE et al., Defendants and Respondents

Page 448

60 Cal.Rptr.2d 448

14 Cal.4th 1149, 929 P.2d 1239, 97 Cal. Daily Op. Serv. 786,

97 Daily Journal D.A.R. 1105

Gilardo C. ALCARAZ, Plaintiff and Appellant, v. Peter VECE et al., Defendants and Respondents.

No. S050761.

Supreme Court of California

Jan. 31, 1997.

B.E. Bergesen, III, Berkeley, O'Brien & Harrington, William K. O'Brien and Colleen Duffy-Smith, San Francisco, for Plaintiff and Appellant.

Joni Brandvold, Arnelle, Hastie, McGee, Willis & Greene, Otis McGee, Jr. and Jesper I. Rasmussen, San Francisco, for Defendants and Respondents.

Gassett, Perry & Frank, and Jacquelyn K. Wilson as Amici Curiae on behalf of Defendants and Respondents.

GEORGE, Chief Justice.

Plaintiff Gilardo C. Alcaraz was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. The cover of the meter box either was broken or missing. He sued his landlords, but the superior court granted summary judgment for defendants because the meter box was not located on defendants' property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants' property line.

For the reasons that follow, we affirm the Court of Appeal's ruling that the superior court erred in granting summary judgment for defendants, because we conclude that a triable issue of fact exists as to whether defendants exercised control over the narrow strip of land owned by the city, that was located adjacent to, and was not noticeably

separate from, defendants' property, and thus had a duty to warn plaintiff of, or protect him from, the hazard in question. Our determination that a triable issue of fact exists as to whether defendants exercised control over the property on which the hazard was located resolves the issue whether the superior court properly granted summary judgment for defendants and, therefore, we have no occasion in this case to decide under what circumstances, if any, a possessor of land may owe a duty to warn persons on the property of a hazard located on adjacent property that he or she does not own, possess, or control.

I

On April 17, 1991, Gilardo Alcaraz filed a complaint against the owners of the rental property of which he was a tenant, located at 141-147 Lincoln Avenue in the City of Redwood City (the city), alleging he had suffered personal injuries. In an amended complaint, he alleged that on the evening of April 17, 1990, he was injured when he stepped into a utility meter box embedded in the lawn next to the sidewalk in front of the building in which he was renting an apartment. Plaintiff alleged that defendants had actual notice that the cover to the utility box either was broken or missing.

On November 12, 1993, defendants filed a cross-complaint against the city and its water department, alleging that cross-defendants owned and maintained the meter box into which plaintiff had fallen and knew, or should have known, of its dangerous condition.

Defendants thereafter filed a motion for summary judgment on the complaint, asserting they owed no duty to plaintiff because they did not own either the meter box or the land upon which it was located. The evidence offered in support of the motion for summary judgment included a declaration from Jon Lynch, senior civil engineer for the city, stating that the meter box was located within a 10-foot-wide strip of land owned by the city that extends from the curb of Lincoln Avenue to defendants' property line, encompassing the sidewalk and an additional approximately 2-foot-wide strip of lawn area adjacent to defendants' property line. The closest edge of the meter box was one foot from defendants' property line. Attached as an exhibit to the declaration was a copy of a page from the city's utility block book showing that the meter box was located within this 10-foot-wide strip of land owned by the city.

Defendants also offered in support of the motion the declaration of a licensed land surveyor, John May, who stated that he had conducted a survey and concluded "that the subject water meter is located outside the property boundaries of 141-147 Lincoln Avenue." A hand drawn map attached as an exhibit to the declaration indicates that the nearest edge of the water meter is three inches from defendants' property line, and that the water meter is located within the strip of land owned by the city, specifically in an area approximately two feet wide lying between the sidewalk and defendants' property line.

In his opposition to defendants' motion for summary judgment, plaintiff maintained that defendants were responsible for his injuries because they "either own a portion of the property on which the meter box is located, ... or more importantly, defendants maintain and control the subject premises." Plaintiff submitted photographs of the premises where the accident occurred and excerpts of a deposition of defendant Peter Vece, to establish that (1) prior to and at the time of the accident, defendants maintained the entire lawn from the front of the apartment building to the sidewalk, including that portion of the lawn that lies on the strip of land owned by the city, and (2) subsequent to the incident in question, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the approximately two-foot wide portion of the strip of land owned by the city lying between the sidewalk and defendants' property line.

In addition, plaintiff submitted the declaration of Stephen Amer, a neighbor who resided in the same building at the time of the accident. The declaration stated that, on several occasions, Amer had informed both defendant Vece and "various 'Water Company The superior court granted defendants' motion for summary judgment, issuing a written opinion concluding that no triable issues of fact existed, because defendants neither owned nor exercised control over the meter box and "it is undisputed that the City of Redwood City owns the real property upon which the box is located ... and exercises control over the box...."

meter readers' " that the cover of the meter box either was broken or missing. Plaintiff also submitted the declaration of Stanley Gray, a licensed land surveyor, who stated that he had conducted a survey of defendants' property and concluded "that the southerly right-of-way line of Lincoln Avenue, Redwood City, California cannot be ascertained within standard accuracy (1:10,000). Making an absolute statement about this boundary line is an impossibility as no recoverable monuments were set in 1902 within the subdivision. I found a variation of professional opinions in a total range of nine inches. It is reasonably probable, therefore, that the subject water meter box is not entirely located on property owned by the City of Redwood City, but rather a portion thereof may be located inside the property boundaries of 141-147 Lincoln Avenue, Redwood City, California." ¹

The Court of Appeal reversed the summary judgment rendered by the superior court. The appellate court agreed with the lower court "that the declarations filed by defendants demonstrated that there was no triable issue as to the fact of ownership of the meter box, because defendants neither owned nor exercised control over the meter box." The Court of Appeal also agreed that there was "no triable issue of fact [disputing] that the city, not defendants, owned the real property on which the meter box was located." But the appellate court went on to conclude that the superior court had erred in granting summary judgment for defendants, because there existed a "triable issue of fact as to whether the combination of the circumstances of defendants' actual or apparent control over immediately adjacent premises and the foreseeability of injury to plaintiff created a duty on the part of defendants to either warn plaintiff of the danger, or protect him from it, or both." The Court of Appeal reasoned that the circumstances that "defendants maintained the lawn completely surrounding the meter box" and that defendant Vece had actual notice of the broken or missing cover, gave rise to a duty to protect or warn plaintiff.

II

A

The superior court granted summary judgment in favor of defendants on the grounds that they did not own, or exercise control over, the water meter box into which plaintiff fell, and did not own the land upon which the meter box was located. Summary judgment is proper "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)

The circumstance that defendants did not own or exercise control over the meter box itself does not entitle them to judgment as a matter of law. "The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others...." (Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561.) This requires persons "to maintain This duty to maintain land in one's possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. For example, in Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233, 282 P.2d 69, this court held that the owner of land could be held liable for failing to warn its tenant of the danger posed by use of a crane near overhead electrical lines, even though the landowner neither owned nor maintained the electrical lines. The Court of Appeal reached the same conclusion on similar facts in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, 9 Cal.Rptr.2d 124. Accordingly, in the present case, if the condition of the meter box created a dangerous condition on land that was...