Rosales v. Stewart
Citation | 113 Cal.App.3d 130,169 Cal.Rptr. 660 |
Court | California Court of Appeals |
Decision Date | 11 December 1980 |
Parties | Saul ROSALES and Rosa Rosales, Plaintiffs and Appellants, v. Thelma STEWART, Defendant and Respondent. Civ. 57709. |
Lorenzo Martin Campbell, Watsonville, for plaintiffs and appellants.
Halde, Thomas, Kallman & Hulse and Jeffrey Evan Thomas, Santa Barbara, for defendant and respondent.
Appellants, Saul and Rosa Rosales, initiated this wrongful death action in their capacity as the parents and only heirs of Noemi Rosales who was ten years old at the time of her death.
While in the backyard of her home, on the afternoon of June 6, 1978, Noemi was struck by a bullet fired by one Steven Boyer (hereinafter Boyer) while standing in the backyard of a dwelling which he was renting from respondent Thelma Stewart. Two days later Noemi died as a result of the injuries she suffered when struck by the bullet. The backyard of the dwelling owned by Thelma Stewart, from which her tenant had fired the fatal shot, adjoined that of decedent.
Appellants alleged in the first amended complaint that
This appeal is taken from an order of dismissal entered after respondent's demurrer to appellants' first amended complaint was sustained without leave to amend.
I.
The primary issue on this appeal is whether a landlord may be liable for the acts of her tenant committed on the leased premises which injure persons on the adjoining premises.
Regarding the elements of a cause of action for negligent injury to person or property, the complaint "must allege (1) defendant's legal duty of care toward plaintiff; ... (2) defendant's breach of duty-the negligent act or omission; ... (3) injury to plaintiff as a result of the breach-proximate or legal cause; ... (and) (4) damage to plaintiff ...." (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.)
Although the legal conclusion that "a duty" exists is neither necessary nor proper in a complaint, facts which cause it to arise (or from which it is "inferred") are essential to the cause of action. (Palmer v. Crafts (1936) 16 Cal.App.2d 370, 374, 60 P.2d 533.)
It is a general principle that one owes a duty of care only to those who are foreseeably endangered by one's own conduct, with respect to all risks which make the conduct unreasonably dangerous. (Civ.Code, § 1714; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.) As this court stated in J. A. Meyers & Co. v. Los Angeles County Probation Dept. (1978) 78 Cal.App.3d 309, 312-313, 144 Cal.Rptr. 186:
Appellants claim they have pleaded such a special relationship, that of landlord-tenant, and therefore the court below abused its discretion in sustaining the demurrer to the first amended complaint without leave to amend. They rely primarily on three cases they believe are controlling: Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 [113 Cal.App.3d 134] P.2d 561; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 118 Cal.Rptr. 741; Brennan v. Cockrell Investments, Inc. (1973) 35 Cal.App.3d 796, 111 Cal.Rptr. 122.
In Rowland v. Christian, supra, the court, in its determination of whether a possessor of land owes a duty to injured victims, stated that the following considerations must be balanced: the foreseeability to harm to the plaintiff; the closeness of the connection between defendant's conduct and the injury suffered; the moral blame attached to the defendant's conduct; the extent of the burden to the defendant and the consequences to the community of imposing a duty with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved. (Id. at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)
In the instant case, the tenant was alleged to have engaged in an activity which was both dangerous to others than...
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