McDaniel v. Sunset Manor Co.

• Citation: 220 Cal.App.3d 1,269 Cal.Rptr. 196
• Decision Date: 08 May 1990
• Docket Number: No. A044092,A044092
• Court: California Court of Appeals
• Parties: Eva Marie McDANIEL, a Minor, etc., Plaintiff and Appellant, v. SUNSET MANOR COMPANY, Defendant and Respondent.

Page 196

269 Cal.Rptr. 196

220 Cal.App.3d 1

Eva Marie McDANIEL, a Minor, etc., Plaintiff and Appellant, v. SUNSET MANOR COMPANY, Defendant and Respondent.

No. A044092.

Court of Appeal, First District, Division 1, California.

May 8, 1990.

Scott D. Righthand, Bostwick & Tehin, San Francisco, for plaintiff and appellant.

John A. Knutson, George D. Yaron, William Green, Fisher & Hurst, San Francisco, for defendant and respondent.

STEIN, Associate Justice.

The underlying personal injury action was brought on behalf of a child who nearly drowned in a creek located on property adjacent to defendant Sunset Manor Housing Development. Plaintiff appeals from an entry of judgment after defendant Sunset Manor's motion for summary judgment was granted.

FACTUAL AND PROCEDURAL BACKGROUND

On July 21, 1980, Eva Marie McDaniel, age two years and three months, resided with her parents and siblings in Sunset Manor, a federally-funded housing project subsidized by the U.S. Department of Housing and Urban Development (HUD). This project consisted of approximately 20 buildings. Appellant's unit was situated toward the middle of the complex and included a patio fully enclosed by a six-foot fence and gate. At that time, Sunset Manor had a population of approximately 300 children. On its northern and eastern boundaries, Sunset Manor is bordered by public sidewalk and roadway. On its western boundary, Sunset Manor is bordered by a redwood-slat fence standing approximately six feet in height and 857 feet in length. On its southern boundary, Sunset Manor is bordered by a similar fence running over 400 feet. Laurel Creek is located to the south of Sunset Manor in an adjacent parcel of land not owned by Sunset Manor. The creek runs in a southwest direction and comes, at its closest, to within 20-to-30 feet of the southeast corner of the Sunset Manor project. At this point the fence ends 10 feet west of the sidewalk which borders the east side of the project. At the time of the accident, the banks of Laurel Creek had a steep vertical drop of 7-to-8 feet in the area where the accident occurred.

On July 21, 1980, Eva was found floating face down in Laurel Creek approximately 20 feet southwest of the point where the creek runs closest to Sunset Manor. Although the record is unclear regarding the route that Eva took from Sunset Manor to Laurel Creek, the most direct route for a two-year-old child would have been through the fence on the south side of the complex. There was a large hole in the southwest corner of the fence, large enough for an adult to pass through. Eva's brother, Bradley, declared that he saw Eva walk through that gap in the fence before she slid into the creek. ¹ Sunset Manor concedes and the record reflects that the fence had numerous holes and was in constant disrepair.

Eva's resultant injuries include profound brain damage and quadriplegia.

DISCUSSION

A motion for summary judgment "shall be granted 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 evidence submitted by the moving party is strictly construed and the evidence submitted in opposition is liberally construed. Doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870.)

On appeal, review is limited to the facts shown in the documents presented to the trial judge in making an independent determination of their construction and effect as a matter of law. Thus, this court reviews the action of the trial court for abuse of discretion as to the factual allegations and looks independently at the legal effects of those facts. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, 264 Cal.Rptr. 756; Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)

The sole issue raised by Sunset Manor's motion for summary judgment concerned whether it owed plaintiff a duty, and the motion was granted on the ground that it did not. Below and on appeal plaintiff argues that Sunset Manor did owe her a duty of care, imposed either by guidelines specifically applicable to HUD projects or by common-law tort principles.

I. The HUD Guidelines

We first consider plaintiff's assertion that "regulations" from a HUD manual created and imposed a duty of due care on Sunset Manor to prevent tenants from gaining access to adjacent property. Evidence Code section 669, subdivision (a) states in pertinent part:

"The failure of a person to exercise due care is presumed if:

"(1) He violated a statute, ordinance, or regulation of a public entity;

"(2) The violation proximately caused death or injury to person or property;

"(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

"(4) The person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."

The threshold inquiry is whether the proffered rule is in fact a "statute, ordinance, or regulation of a public entity." (See Posey v. State of California (1986) 180 Cal.App.3d 836, 848-849, 225 Cal.Rptr. 830 [CHP internal guidelines do not create mandatory duty under Gov.Code, § 815.6, on the part of the CHP].)

Plaintiff seeks to impose a presumption of negligence by virtue of provisions in the HUD Manual of Acceptable Practices and Minimum Property Standards. While these standards inarguably applied to Sunset Manor by the terms of its mortgage agreement with HUD, HUD did not codify any of its standards in the Federal Register until February 24, 1983--three years after the subject accident. (48 F.R. 7735.) Moreover, the primary basis for plaintiff's contentions, 24 C.F.R. § 200.926, was added still later in 1985.

The statute by its terms embraces only the "regulation of a public entity," not its manuals or internal operating procedures. The Legislature's narrow intent in this regard is further indicated by its enactment of Evidence Code section 669.1, which specifically provides that a state government manual setting forth employee guidelines does not automatically constitute a statute for purposes of creating a presumption of negligence. Only after the manual is formally adopted as a statute does this legal effect occur. We believe that the Legislature did not intend the uncodified standards and practices set forth by HUD, a federal agency, to have any greater effect than uncodified state guidelines under Evidence Code section 669.1.

We thus turn to the common law principles of premises liability to determine if respondent owed a duty to appellant.

II. Common Law Premises Liability

Plaintiff does not contend that Sunset Manor is responsible for the existence of a dangerous condition (the creek) on the adjoining property. Nor, can plaintiff successfully claim that Sunset Manor had any duty to enclose its premises with a fence. ² Rather, it is plaintiff's theory of liability that, given the existence of the nearby creek and the foreseeable conduct of children, Sunset Manor had incurred a duty to maintain in a secure manner the fence it had erected.

Of the many factors to be considered in determining whether a duty exists (see Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, 70 Cal.Rptr. 97, 443 P.2d 561), the foreseeability of the risk is the chief element and of prime concern in every case. (Dillon v. Legg (1968) 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912; see also Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.) In Rowland the Supreme Court defined the duty owed by possessors of land. That decision abrogated the immunity of a landowner as well as the exceptions to that immunity based on the plaintiff's classification as trespasser, licensee, and invitee. Instead, a landowner now is subject to the general duty of ordinary care: the duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. (Id. 69 Cal.2d at pp. 118-119, 70 Cal.Rptr. 97, 443 P.2d 561; see also Civ.Code, § 1714, subd. (a); BAJI 8.00 (7th ed. 1986).)

A greater degree of care is generally owed to children because of their lack of capacity to appreciate risks and to avoid danger. (Casas v. Maulhardt Buick, Inc. (1968) 258 Cal.App.2d 692, 697, 700, 66 Cal.Rptr. 44.) A landowner similarly shares that duty to "protect the young and heedless from themselves and guard them against perils that reasonably could have been foreseen." (Copfer v. Golden (1955) 135 Cal.App.2d 623, 629, 288 P.2d 90.) The determination of the scope of foreseeable perils to children must take into consideration the known propensity of children to intermeddle. (Id. at p. 628, 288 P.2d 90.)

At the time of the injury, plaintiff was not using Sunset Manor's property but had wandered onto adjacent property and only then fell into the creek. Sunset Manor argues that since the peril arose from the features of the adjacent land over which it had no control, it cannot be liable for plaintiff's injuries. Sunset Manor correctly notes that control over the dangerous features on adjacent property is an important consideration in determining the duty of a landowner. (See, e.g., Brooks v. Eugene Burger Management Corp., supra, 215 Cal.App.3d at p. 1623, 264 Cal.Rptr. 756 [apartment complex owes no duty to minor resident injured on busy adjacent street]; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386, 243 Cal.Rptr. 627, and cases cited [supermarket owner owes no duty to customer injured by traffic on adjacent public street]; Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 718 fn. 1, 720, 246 Cal.Rptr. 199 [school owes no duty to law...