Wylie v. Gresch

• Decision Date: 27 April 1987
• Court: California Court of Appeals Court of Appeals
• Parties: Donald R. WYLIE et al., Plaintiffs and Appellants, v. Joseph J. GRESCH et al., Defendants and Respondents. A017402.

Page 552

236 Cal.Rptr. 552

191 Cal.App.3d 412

Donald R. WYLIE et al., Plaintiffs and Appellants, v. Joseph J. GRESCH et al., Defendants and Respondents.

A017402.

Court of Appeal, First District, Division 3, California.

April 27, 1987.

Scott O'Brien, Steven Kroff, Kroff & Associates, Palo Alto, for plaintiffs and appellants.

Alfred B. Britton, Jr., Campbell, Warburton, Britton, Fitzsimmons & Smith, San Jose, for defendants and respondents.

BARRY-DEAL, Associate Justice.

We hold that a landlord has no duty to warn a prospective tenant of the presence of a vicious dog in the neighborhood.

The Wylies, parents and minor children, appeal from a judgment of dismissal of their action against their landlords, the Gresches, for damages resulting from an attack on one of the Wylie children by the vicious dog owned by neighbors living next door to the rented premises. In their complaint the Wylies also allege various causes of action against their neighbors, who were also tenants, and against the owner of their neighbors' premises; these defendants are not parties to the appeal. The Wylies maintain that the trial court erred in sustaining, without leave to amend, a demurrer to the causes of action against their own landlords. We affirm the judgment.

The function of a demurrer is to test the sufficiency of plaintiffs' pleading by raising questions of law. (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357; see 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 894, p. 333.) Solely for that purpose, a demurrer admits all properly pleaded material facts, but it does not admit conclusions of law. (5 Witkin, Cal. Procedure, Pleading, supra, at § 898, p. 338.) Thus, our only concern in this case is whether plaintiffs have stated a cause of action against their landlords for violation of a duty to protect or to warn the Wylies, as prospective tenants, against the potential harm from the vicious dog owned by the next-door neighbors.

Whether the trial court abused its discretion in refusing to allow amendment to the complaint hinges on whether it was "a reasonable possibility" for plaintiffs to cure any defect by amendment. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113; 5 Witkin, Cal. Procedure, Pleading, supra, at § 945, p. 379.) Therefore, we include in brackets facts argued to or included in the record before the trial court which presumably could have been amended into the complaint. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 432, fn. 3, 433, 131 Cal.Rptr. 14, 551 P.2d 334 [hereafter cited as Tarasoff ].)

The Complaint

The third cause of action reveals the following facts. Defendants Joseph Gresch and Ann Gresch owned residential property at 85 Essendon Street in San Jose. At the time of the incident in question, October 19, 1981, they owned, managed, operated, maintained, and controlled the premises. [Approximately two months prior to that date, plaintiffs Donald Wylie and Linda Wylie, husband and wife, had leased the premises from the Gresches and had moved in with their three minor children.] The minor children of the Wylies were: Teresa [age 12], the dog bite victim; Sharon [age 14]; and Helen [age 17], who were also plaintiffs. [The Gresches, as landlords, had a special relationship, landlord-tenant, with each of the plaintiffs and owed them a duty of care.]

Defendants Michael Buzzell and Tammy Buzzell lived next door at 83 Essendon Street, which they rented from defendant Richard Houston, who owned and managed the property. The Buzzells owned a pit bull dog, ¹ which "had attempted to attack persons, had attacked other dogs and animals in the neighborhood, and had damaged property and otherwise shown vicious propensities." [On one occasion the dog had broken through a fence and chased a neighbor into her house. The dog "had virtually run rampant throughout the neighborhood."]

[Before appellants moved in, the dog had broken through the fence which separated the backyards of the two properties. The fence separating 83 and 85 Essendon had been damaged by this incident, and the Gresches had arranged for its repair prior to the Wylies' renting the premises.] ² Thus, the Gresches "had actual [and constructive] knowledge of the [dog's] vicious propensities...." Nevertheless, they "failed to warn [the Wylies] of the danger of said dog, and of its vicious propensities and failed to file a formal complaint and take other available measures to have the Santa Clara County Animal Control Division, or other appropriate governmental entities, cause the removal of said dog from ... 83 Essendon Street...." ³

On the day in question, Teresa Wylie was "at or near her residence," ⁴ and the dog was "in the possession of" defendants Buzzell. [The dog "came onto the property at least initially on a leash, but the dog broke off the leash."] Michael Buzzell "invited and permitted" Teresa Wylie to pet the dog. The dog then bit off the child's ear and inflicted other severe injuries.

The sixth and eighth causes of action allege that Teresa Wylie's mother and sisters suffered injuries as a result of witnessing the attack, and Donald Wylie suffered loss of consortium with his wife, Linda.

Discussion

The elements of a cause of action for negligence are commonly stated as (1) a legal duty to use due care; (2) a breach of that duty; (3) a reasonably close causal connection between that breach and the resulting injury; and (4) actual loss or damage. (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 30, pp. 164-165 [hereafter cited as Prosser & Keeton]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 488, p. 2749.)

The principal question here focuses on the first element, that of duty. (See generally Comment, The Death of Palsgraf: A Comment on the Current Status of the Duty Concept in California (1979) 16 San Diego L.Rev. 793.) Whether a legal duty exists in a given case is primarily a question of law. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342, 134 Cal.Rptr. 375, 556 P.2d 737.) In the typical negligence action, a determination that there is no "duty" giving rise to liability is essentially a shorthand way of expressing the conclusion that the weight of public policy warrants a departure from Civil Code section 1714, subdivision (a), which broadly imposes liability on "[e]very one ... for an injury occasioned to another by his [or her] want of ordinary care or skill in the management of his [or her] property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself [or herself]...." (See Tarasoff, supra, 17 Cal.3d at p. 434, 131 Cal.Rptr. 14, 551 P.2d 334; Rowland v. Christian (1968) 69 Cal.2d 108, 111-113, 70 Cal.Rptr. 97, 443 P.2d 561.) This weight of public policy is measured by balancing these major considerations: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Rowland, supra, at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.) Appellants argue that a "duty" exists in light of these considerations.

Formerly, the duty, and resulting liability, of landlords out of possession was quite limited. They had "no general duty to keep the premises in safe condition after transfer of possession ... [and were] ordinarily not liable for injuries to a tenant or [the tenant's] invitees, or to strangers, resulting from the defective condition of the premises, even though by the exercise of reasonable diligence [they] might have discovered the defects. [Citations.]" (3 Witkin, Summary of Cal.Law (8th ed. 1973) Real Property, § 453, pp. 2135-2136; Prosser & Keeton, supra, at § 63, p. 436.) There were a number of exceptions to this general rule which covered cases such as those in which the landlord had knowledge of a latent defect and failed to warn the tenant, or where the landlord retained control over common areas and failed to keep them safe. (3 Witkin, Summary of Cal.Law, Real Property, supra, at §§ 456, 460, pp. 2139, 2143-2144.) This latter exception has been extended to impose a duty on landlords to protect tenants from criminal acts of third persons under certain circumstances. (See Prosser & Keeton, supra, at § 63, p. 442.)

For example, in Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324, 176 Cal.Rptr. 494, plaintiff was assaulted and raped by a nontenant in the dimly lit lobby of her apartment building. The front door lock was defective, and the building was in a high crime area. The landlord was aware of the defective lock and of the intrusions of nontenants into the building. The landlord also knew that a similar assault had occurred in a common area of the building two months previously. (Id., at p. 326, 176 Cal.Rptr. 494.) The court found consistent with the Rowland rule, that under the circumstances, the landlord could foresee that similar assaults would occur. (Kwaitkowski, supra, at pp. 328-329, 176 Cal.Rptr. 494.)

In Penner v. Falk (1984) 153 Cal.App.3d 858, 200 Cal.Rptr. 661, plaintiff tenant was assaulted by two nontenants in a common hallway of his apartment building. (Id., at pp. 860-861, 200 Cal.Rptr. 661.) The Court of Appeal reversed the decision of the trial court which had sustained defendant's demurrer, because the court found that the landlord knew of previous crimes in the building and that the landlord failed to correct known defective conditions which permitted free entry into the building. (Id., at pp. 866-867, 200 Cal.Rptr. 661.)

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