Guralnick & Gilliland, Attorneys At Law

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CASE LAW - 2001

Property Owners Responsible for Tort Damages in Premises Liability Cases for Accidents Occurring on Adjacent Property. Ann Alpert v. Villa Romano Homeowners Association (2000) 81 Cal.App.4^th 1320, 96 Cal.Rptr.2^d 364 [originally in Guralnick & Gilliland's Fifteenth Annual Legislative Update]

INTRODUCTION

Ann Alpert was injured after she tripped on a crack in a sidewalk owned by the City of Los Angeles adjacent to the Villa Romano condominium complex. Alpert lost at trial when the Court concluded that the Villa Romano Homeowners Association did not owe any duty of care to Alpert, a pedestrian, and excluded evidence that the Villa Romano Board of Directors had been aware of the cracks. Alpert appealed. It is clear in the Court of Appeal's opinion where the Court of Appeals sympathies lie:

In the late morning of July 27, 1992, Alpert, then 69 and in good health, took her four-year-old dog, BJ, a poodle weighing approximately eight pounds, for a walk near her home in Marina del Rey. She had BJ on a leash. Alpert walked her dog several times a day, but had never fallen before while walking him. This day, on the way home, she passed in front of the VRHA condominium property. ... The weather was dry and clear; the summer sun was overhead. Alpert's walk ended when one of her feet came in contact with an upturned, jagged piece of sidewalk, causing her to lose her balance and fall, face first, to the sidewalk. After her fall, she noticed that there was grass growing in this break in the sidewalk... At the time of trial, she was unable to walk more than a block without pain, and was using a wheelchair to go longer distances.

The Court of Appeal reversed and remanded the case back to the Trial Court, holding that the Association had a duty to protect third persons from hazards on the adjacent sidewalk, and that the Trial Court was required to admit evidence that the Board of Directors had been aware of the cracks in the sidewalk.

ANALYSIS

The Trial Court held that the City of Los Angeles, and not the Association, owned the sidewalk and that therefore the Association was not liable to Alpert for her injuries. The Court of Appeal disagreed and reversed. The Appellate Court relied primarily upon a 1997 decision of the California Supreme Court, Alcaraz v. Vece (1997) 14 Cal.4th 1149. (See Guralnick & Gilliland Twelfth Annual Legislative Update - 1998 Edition, p. 52, for our analysis.) In Alcaraz, the plaintiff sued his landlord, the owner of the apartment building in which he resided, for injuries sustained when Alcaraz stepped into an open utility meter box located in the city-owned lawn next to the sidewalk in front of that residence. The California Supreme Court held that there was a triable issue of fact as to whether the property owner had exercised control over the area in which the utility box was located, even though that area was owned by the City. The California Supreme Court held that if the property owner did exercise such control, then it had a duty to warn Alcaraz of the danger, or protect him from that danger, and that this duty was owed to all persons who foreseeably may be in the area.

Based upon Alcaraz, the Court in Alpert stated that

The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property [the possessor] has acted as a reasonable man in view of the probability of injury to others. ... 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.

The Court of Appeal concluded that the Association had a duty to "take reasonable measures to protect persons from dangerous conditions on adjoining land", such as the sidewalk owned by the City, if it "exercised possession or control" over that sidewalk. If so, the Association owed a duty to act as a reasonable person in view of the probability of injury to others.

In determining whether the Association had "exercised possession or control" over the adjacent sidewalk, the Court of Appeal noted that the Association had planted and maintained all of the trees and vegetation on both sides of the sidewalk, had installed sprinklers on both sides of that walkway and, most importantly, had watered and trimmed the trees which grew the roots which caused the sidewalk to be uplifted and crack. Additionally, the Association employed a person to trim trees on the lawn between the sidewalk and the condominium property and on the portion of the lawn between the sidewalk and the street. Based upon these facts, the Court of Appeal ruled that there was sufficient evidence that the Association had exercised possession and control over the sidewalk and that it owed a duty to Alpert to either warn her of or protect her from the sidewalk cracks.

The Court of Appeal also held that the Trial Court erred in refusing to admit evidence that the Association had been aware of the cracks in the sidewalk for some time. For example, the gardener was aware of the break in the sidewalk, and it had been there for a few years prior to the date of Alpert's fall. Elihu Crane, a board member prior to Alpert's accident, testified that the City of Los Angeles controlled the sidewalks and that the Association's responsibility was limited to keeping the sidewalk clean. Judith Crane was the chairperson of the Association's Gardening Committee. She inspected the property shortly prior to Alpert's accident, and she had been aware for some time of the existence of cracks in the sidewalk in the area in which Alpert fell.

However, the Trial Court refused to permit Alpert to question the Board and committee members about a discussion at the Association's November 1997 Board of Directors' meeting and refused to permit Alpert to introduce minutes of that meeting into evidence. The minutes of a Board of Directors' meeting in June of the same year (prior to Alpert's fall) reflected a discussion about bids to repair sidewalk "bumps", the condition of the sidewalk, and the need to repair it. The Appellate Court in Alpert noted that the evidence of the Board's discussion of possible repairs to the sidewalk was highly relevant regarding whether the Association "exercised control" over the sidewalk owned by the City. The Court concluded, again based upon Alcaraz, that Evidence Code § 1151 did not preclude the introduction of this evidence, stating, "[W]e may consider such evidence in determining whether ... defendants exercised control over the strip of land and thus owed a duty of care to plaintiff."

PRACTICAL APPLICATION

It is unfortunate to see that the Courts appear to be determined to continue their line of cases holding property owners responsible for tort damages in premises liability cases for accidents occurring on adjacent property which they do not own, but which they may be deemed to "control". The Alpert case, like the Alcaraz case before it, fails to provide any standards or guidance for an association to determine exactly when its routine maintenance and landscaping upon or adjacent to areas it may not own, including public sidewalks, may be ruled by a Court as having "control" over that property and therefore creating liability for any injury which may occur on that property.

In Alpert, the Association merely maintained the landscaped areas on both sides of the sidewalk and kept the sidewalk clean. Almost all homeowners associations perform similar landscape maintenance adjacent to a public sidewalk or street. We recommend that community associations may attempt to limit their liability by taking the following steps:

* Review their general liability insurance policy. The policy should cover all land that the Association either owns or has a responsibility to maintain under the CC&Rs, as well as any adjacent property that the Association is maintaining based upon aesthetics or common sense.

* Where the Association has been maintaining a portion of adjacent property for which it is not responsible under the CC&Rs, the Association may decide to notify the adjacent landowner of his/her responsibility to maintain the area in question, particularly if the Association is not insured for the area.

* Based upon Alpert, it appears that any association which performs landscape maintenance on areas adjacent to public sidewalks may be liable for injuries to pedestrians who trip on cracks or other defects in the sidewalk, particularly if the defect may caused by growth of tree roots owned by the Association. Associations should consult with an arborist to limit, where possible, the intrusion of tree roots into the sidewalks or other walkways where they may cause dangerous cracks.

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