Dangerous on-site and off-site activities

This article presents the duty of care a landlord has to others, on or off the property, for dangerous on-site and off-site activities.

Landlord’s duty to all to remove on-site dangers

A landlord, but his exercise of reasonable care in the management of his property, must prevent foreseeable injury to all others who may, for whatever reason, be on the leased premises. [Rowland v. Christian (1968) 69 C2d 108; Calif. Civil Code §1714]

If a person — a tenant, guest, invitee or trespasser — is injured due to the landlord’s breach of his duty of care to remove or correct a known dangerous on-site condition, the landlord is liable for the person’s money losses the injured person incurred due to the injury. [CC §1714]

The duty of care for others owed by the landlord applies to all persons on the property whether they enter the premises with or without permission or are mere social guests, unless the person is committing a felony on the property.

Conditions imposing responsibility

To impose liability on a landlord for an injury suffered by any person on the leased premises, several factors must be considered, including:

• the foreseeability of the type of injury suffered by the individual;
• the closeness of the connection between the landlord’s conduct and the injury suffered;
• the moral blame attached to the landlord’s conduct;
• the public policy of preventing future harm;
• the extent of the burden on the landlord and the consequences to the community of imposing a duty to exercise care to prevent the injury suffered; and
• the availability, cost, and prevalence of insurance for the risk involved. [Rowland, supra]

For example, the landlord with knowledge of a dangerous situation created by the presence of a tenant’s dog is liable for injuries inflicted on others by the dog based on many of these factors. The landlord’s failure to remove the dangerous condition from his property created by the dog is closely connected to injuries inflicted by the dog.

The landlord is sufficiently aware of the dangerous condition created by the presence of the dog to reasonably foresee the possibility of injury to others. Also, the landlord has the ability to eliminate or reduce the dangerous condition and prevent future harm by serving on the tenant a 3-day notice to remove the dog or vacate. [Uccello v. Laudenslayer (1975) 44 CA3d 504]

Landlord’s duty to inspect

The landlord must use reasonable care in the repair and maintenance of the leased premises to prevent harm to others. To accomplish this level of safety through prevention of harm, the property must be inspected by the landlord whenever entry is available to the landlord.

Thus, each time a landlord enters into, renews  or extends a rental or lease agreement, a reasonable inspection of the leased premises for dangerous conditions must be completed as part of his duty of care to prevent injury to others. If the landlord fails to inspect when the opportunity exists, the landlord will be charged with knowledge of any dangerous condition that he should have discovered had he undertaken an inspection.

Consider a landlord and tenant who enter into a nonresidential lease agreement.

The lease agreement allows the landlord to enter the premises for yearly inspections. Also, the tenant is required to obtain the landlord’s approval before making any improvements.

With the landlord’s consent, the tenant builds a roadside marketing structure and operates a retail produce business. The structure’s concrete floor is improperly constructed and unfinished. Produce is often littered on the floor.

More than a year after construction, a customer slips and falls on produce littered on the floor, injuring himself. The customer claims the landlord is liable for his injuries since the landlord’s right to inspect the property puts him on notice of the dangerous condition created by produce falling on the improperly constructed and unfinished concrete floor.

The landlord claims he is not liable for the customer’s injuries since he had no actual notice of the dangerous condition created by the temporary deposit of produce on the floor.

However, the landlord is liable for the customer’s injuries if the construction of the concrete floor:

• is a dangerous condition; or
• poses a dangerous condition when littered with produce from a permitted use. [Lopez v. Superior Court (1996) 45 CA4th 705]

A landlord is required to conduct an inspection of the leased premises for the purpose of making the premises safe from dangerous conditions when:

• a lease is executed, extended or renewed; and
• the landlord exercises any periodic right to re-enter or any other control over the property, such as an approval of construction. [Mora v. Baker Commodities, Inc. (1989) 210 CA3d 771]

Here, the landlord would have observed the condition of the floor had he conducted the yearly inspection of the premises called for in the lease agreement. Thus, the landlord is liable for slip and fall injuries when the condition of the floor is determined to be dangerous. [Lopez, supra]

A reasonable inspection

A landlord has a duty to inspect the leased premises when he enters the premises for any single purpose, such as maintenance, water damage or some other exigency causing him to make an emergency visit.

While a landlord may enter the premises during the lease term, he is not required to make a thorough inspection of the entire leased premises. However, the landlord who enters will be charged with the knowledge of a dangerous condition if the condition would have been observed by a reasonable person. [Mora, supra]

A landlord of a leased premises containing areas open to the public will be liable for injuries caused by a dangerous condition in the public area if the condition would be discovered during a landlord inspection.

However, if the landlord is not responsible under the lease agreement for repair and maintenance of nonpublic areas, the landlord will not be liable for failing to discover a dangerous condition occurring in nonpublic sections of a leased premises. The landlord is not required to expend extraordinary amounts of time and money constantly conducting extensive searches for possible dangerous conditions. [Mora, supra]

For example, a triple-net, management-free lease agreement usually transfers all responsibility for maintaining and repairing the property to the tenant.

Under a triple-net lease agreement, the landlord will not be liable for injuries to persons caused by a dangerous condition on the leased premises if:

• the dangerous condition came about after the tenant takes possession; and
• the landlord has no actual knowledge of the dangerous condition.

Editor’s note — Landlords concerned about tenant maintenance of a leased premises will often reserve the right to enter the premises every six or 12 months. However, frequent inspections of a leased premises create a greater potential of liability for the landlord.

Landlords often reserve the right to conduct frequent inspections to assure that the tenant is not damaging or wasting the premises and reducing its market value. The right to enter brings with it the obligation to inspect for dangerous conditions. Also, the landlord may erroneously tend to overlook possible dangerous conditions he can control that are connected to the tenant’s use, not maintenance, of the property.

Knowledge of dangerous conditions

Consider a landlord and tenant who enter into a residential rental agreement giving the tenant permission to keep a German Shepherd dog on the premises.

After the tenant takes possession of the property, the landlord never visits the premises and has never seen the dog.

Later, an employee from a utility company enters the yard and suffers injuries when he is attacked by the tenant’s dog.

The utility company employee seeks to recover money from the landlord as compensation for the injuries inflicted on him by the tenant’s dog. The employee claims the landlord should have known the dog is dangerous since German Shepherds are a breed with the propensity for viciousness.

Is the landlord liable for the employee’s injuries?

No! The landlord did not have knowledge the tenant’s dog was vicious and presented a danger to others. [Lundy v. California Realty (1985) 170 CA3d 813]

A landlord’s obligation to prevent harm to others arises only when the landlord is aware of or should have known about the dangerous condition and failed to take preemptive action.

For example, the landlord receiving complaints from neighbors about the behavior of a tenant’s dog may deduce the dog creates a dangerous condition, even if the dog has not yet injured anyone.

Editor’s note — The landlord’s duty to protect others from an injury inflicted by a dog does not yet include asking the tenant if his dog is dangerous.

However, it is feasible the legislature could enact a law or the courts could impose a duty of inquiry on landlords when authorizing the tenant to keep a dog on the premises.

The pet authorization provision in the rental or lease agreement could include a declaration that the authorized pet is not dangerous.

Further, the owner of a dog is neither civilly nor criminally liable for a dog bite suffered by a person who enters the dog owner’s property, lawfully or otherwise, unless the person is invited onto the property by the owner of the dog, is an employee of a utility company, a police officer or a U.S. mailman. [CC §3342(a)]

Landlord should have known

Now consider a landlord who leases nonresidential property to a tenant who operates a retail sales business on the property. The tenant keeps a dog on the premises and posts a “Beware of Dog” sign. A newspaper article written about the dog’s vicious temperament is also posted on the premises. The landlord visits the leased premises several times a year and knows the dog is kept in the public area of the premises.

After the lease is renewed, a delivery man is attacked and injured by the dog. The delivery man claims the landlord must compensate him for his injuries since the landlord has a duty to inspect the property, ensuring safety for members of the public to enter.

The landlord claims he is not liable since he was personally unaware the dog was dangerous.

Is the landlord liable for the delivery man’s injuries?

Yes! The landlord owes a duty to the delivery man as a member of the public to:

• exercise reasonable care in the inspection of his property to discover dangerous conditions; and
• remove or otherwise eliminate the dangerous condition that may be created by the presence of a vicious dog.

The injured person can recover when the landlord is personally unaware of the dog’s vicious propensities since a reasonable inspection of the premises on renewal of the lease would have revealed to the landlord the newspaper article and the “Beware of Dog” sign. [Portillo v. Aiassa (1994) 27 CA4th 1128]

Also, it is foreseeable that a guard dog kept on a premises during business hours could injure someone.

Further, the landlord’s failure to require the tenant to remove the dog from the premises on discovery that the dog constitutes a dangerous condition is closely connected to the delivery man’s injuries.

The landlord had control over the condition since he could serve a 3-day notice on the tenant, requiring the tenant to either remove the dog from the premises during business hours or vacate the premises.

Editor’s note — In Portillo, the court held moral blame is attached to the landlord’s conduct because of his failure to remove a condition he should have known was dangerous and over which he had control.

Also, a landlord can often remove a dangerous condition by merely exercising his responsibility to make repairs that will eliminate the condition. However, a dangerous condition caused by a tenant’s activity may require a 3-day notice ordering the tenant to correct or remove the dangerous condition, or vacate the premises. [See first tuesday Form 576]

On-site danger leads to off-site injury

Now consider a landlord and tenant who enter into a rental agreement for a residential dwelling. The agreement allows the tenant to keep dogs on the premises.

After the tenant occupies the residence, the landlord visits the premises monthly to collect the rent payments. During his visits, the landlord observes the dogs. The landlord is aware of the dogs’ vicious nature.

One day, a neighbor and his dog are attacked and injured by the dogs tenant’s two blocks away from the leased premises. The neighbor demands the landlord pay for losses resulting from the injuries. The neighbor claims the landlord owes him a duty of care to prevent injuries arising from dangerous animals the tenant keeps on the landlord’s premises.

The landlord claims he is not liable since the injuries occurred off the leased premises.

Here, the landlord is liable for the off-site injuries since the landlord:

• was aware of the vicious propensities of dogs housed on his premises; and
• had the ability to remove the dangerous condition by serving a 3-day notice on the tenant to remove the dogs or vacate the premises. [Donchin v. Guerrero (1995) 34 CA4th 1832]

The landlord’s liability for injuries inflicted by a tenant’s dog off the premises is the same as his liability for injuries inflicted by the dog that occur on the premises.

While the landlord did not have control over the property where the injury occurred, the landlord did have control over the tenant’s right to keep and maintain a known dangerous condition — the dogs — on the premises.

The landlord’s failure to have dangerous dogs removed from the premises caused the injuries suffered by the neighbor. The injury would not have occurred if the landlord had not allowed the dogs, which he knew to be vicious, to remain on the premises he controlled. [Donchin, supra]

Tenant’s dangerous on-site activity

Consider a landlord who is aware the tenant of his single-family rental unit occasionally discharges a firearm in the backyard. One day, a bullet fired by the tenant enters the backyard of the neighboring residence and kills the neighbor.

The neighbor’s spouse makes a demand on the landlord for her financial loss resulting from her husband’s death. The spouse claims the landlord breached his duty to individuals on neighboring property by failing to exercise care in the management of his property when he did not remove the known dangerous activity from the premises.

Is the landlord liable for the neighbor’s death that occurred off the premises?

Yes! Even though the injury occurred off the leased premises, the landlord is liable since the landlord:

• knew of the dangerous on-site activity carried on by the tenant which inflicted the injury; and
• had the ability to eliminate the dangerous condition by serving a 3-day notice on the tenant to refrain from discharging the gun or quit the premises. [Rosales v. Stewart (1980) 113 CA3d 130]

Thus, the landlord had a duty to prevent the tenant from continuing to fire the gun on the premises. The landlord is liable for an injury resulting from a known dangerous condition or activity occurring on his property that he has the ability to remove, regardless of whether the injury from the on-site activity is suffered on or off the leased premises.

However, had the tenant left the landlord’s premises with his gun and then shot and killed an individual, the landlord would not be liable. [Medina v. Hillshore Partners (1995) 40 CA4th 477]

Failure to avoid obvious dangers

Some dangerous conditions are obvious to persons entering or using the premises that impose a duty of care on that person to avoid injury to themselves.

For example, a person wearing cleats walks on a concrete path alongside of which is a rubber walkway for use to prevent slip and fall injuries. The person wearing cleated shoes walks on the concrete path and slips, injuring himself in the fall. A sign does not exist explaining the danger of the person’s activity.

Here, a landlord has no duty to warn or guard others against a dangerous condition that is obvious. [Beauchamp v. Los Gatos Golf Course (1969) 273 CA2d 20]

While a landlord must compensate others for injuries caused by his failure to use skill and ordinary care in the management of his property, the liability has its limits.

A person, who willfully or by his own lack of ordinary care to protect himself brings an injury upon himself, exonerates the landlord, wholly or in part, from liability. [CC §1714]

Thus, a person has a duty of care to himself to be sufficiently observant and keep himself out of harm’s way.

When the injured person’s lack of care for himself contributes to his injury, recovery for his losses is limited to the percentage of the negligence attributed to him, called comparative negligence. The money losses recoverable by the injured person will be diminished in proportion to the percent of negligence attributable to the injured person for causing his own harm by failing to care for himself. [Li v. Yellow Cab Company of California (1975) 13 C3d 804]

Consider a trespasser who illegally enters into or onto property and fails to conduct himself with care to avoid harming himself, called negligence.

When the trespasser is negligent in exercising care in his conduct to prevent harm to himself while entering or moving about the property, any losses recoverable by the injured trespasser will be reduced by the percentage amount of negligence attributed to him for causing his injury. [Beard v. Atchison, Topeka and Santa Fe Railway Co. (1970) 4 CA3d 129]

Further, the landlord’s liability will be limited if the trespasser was in the process of committing a felony on the property when he was injured. [CC §847]

Not a dangerous condition

Now consider a person who enters leased nonresidential property and wants to look inside the building.

Next to the building, below a window, stands a vat of acid maintained by the business authorized to operate on the leased premises. The vat is covered with plywood for the purpose of keeping out dirt and dust.

In order to see through the window, the person climbs up and steps onto the plywood cover which immediately collapses. The person falls into the vat, suffering injuries.

The injured person attempts to recover money from the landlord for losses resulting from his injury.

Here, the landlord is not liable for the person’s injuries since the vat is not a dangerous condition that presents a risk of harm. The vat of acid is an integral part of the business run on the leased premises and is not a danger to any person who conducts himself with care around the vat.

Thus, the injured person undertook the risk of harm to himself by climbing on top of the vat and creating the dangerous situation leading to his injuries. [Bisetti v. United Refrigeration Corp. (1985) 174 CA3d 643]

Editor’s note — In Bisetti, the injured person happened to be a trespasser.

Consider a landlord of an apartment complex used by gang members as a hangout and base from which they commit criminal offenses when off the premises. One of the gang members is a named tenant on the rental agreement.

The tenants and law enforcement officials complain to the landlord about the gang. However, the gang members do not harm or pose a threat of danger to the tenants.

Later, a pedestrian walking past the complex in the public right of way is chased by the gang members. One of the gang members, who is not the tenant, shoots and kills the pedestrian on a street adjacent to the complex.

The spouse of the pedestrian claims the landlord is liable for the death since he failed to remove the dangerous condition, the presence of gang members, from his premises.

However, the landlord does not have a duty to protect members of the public using adjacent public streets from assaults by gang members who congregate on his leased premises. [Medina, supra]

The congregation of gang members on the leased premises is not itself a dangerous condition. The gang members do not pose a physical threat to others of which the landlord is aware.

Thus, the landlord’s failure to take steps to prevent the gang members from congregating on the leased premises is not the cause of the off-site shooting of a pedestrian by one of the gang members.

Again, the landlord is not liable for injuries that occur off the leased premises, since the landlord has no control over the activities of individuals or tenants while they are on public property, only when they are on his property. [Medina, supra]

Dangerous off-site conditions

Now consider a landlord who leases a residence to a tenant. The residents of the neighboring property own a dog the landlord knows to be vicious. The neighbor brings his leashed dog onto the leased premises. The neighbor invites the tenant’s child to pet the dog.

The dog breaks free from the leash and attacks the child, causing injuries. The tenant claims the landlord is liable for his child’s injuries since the landlord failed to warn him of the dangerous condition created by the neighbor’s vicious dog.

Is the landlord liable for injuries inflicted on-site by the neighbor’s dog, which he knew was vicious?

No! The dangerous condition was not maintained on the leased premises. Thus, the landlord has no control or authority himself to remove the dangerous condition from the neighbor’s property. [Wylie v. Gresch (1987) 191 CA3d 412]

While a landlord owes a duty to others to remove a dog from his property that he knows to be dangerous, he does not have a duty to warn his tenants of the presence of vicious animals located on other properties in the neighborhood over which he has no control.

The landlord’s failure to protect the tenant by warning him about the neighbor’s dog did not create a dangerous condition on the leased premises that caused the tenant to be injured. A landlord’s duty to correct or prevent injury from dangerous conditions does not extend to the dangerous conditions that exist off the premises. [Wylie, supra]

While the landlord has a duty to make the leased premises safe by removing dangerous on-site conditions and properly maintaining the premises, he is not the insurer of the tenant’s safety from off-site hazards. [7735 Hollywood Boulevard Venture v. Superior Court (1981) 116 CA3d 901]

Off-site injuries under
landlord control

The public right of way for a street fronting a leased premises includes part of the front lawn, located between the street curb and the property line. The landlord maintains the entire lawn up to the curb.

A water meter is located on the lawn in the street right of way. Several tenants inform the landlord the water meter box is broken and needs repair.

A tenant trips on the broken water meter box and suffers injuries. The tenant makes a demand on the landlord for losses caused by his injuries, claiming the landlord has a duty to eliminate dangerous conditions located in the public right of way within the lawn maintained by the landlord.

The landlord claims he is not liable since the water meter box is not located on his property and the landlord does not own or control the meter box.

However, the landlord is liable for the injuries suffered by the tenant caused by dangerous conditions — the broken water meter box — located in a public right of way surrounded by a lawn created and maintained by the landlord. [Alcaraz v. Vece (1997) 14 C4th 1149]

Also, a landlord or other property owner who installs and maintains trees adjacent to or in the lawn area between the public sidewalk and the street-side curb owes a duty of care to avoid injuring pedestrians by hazards created by the trees he maintains.

For example, trees planted and maintained by the property owner grow and eventually produce roots that extend under the sidewalk and crack and uplift it. The owner is aware of the hazard created by the tree roots but undertakes no steps to have the hazardous condition repaired or replaced.

Here, the owner has taken control over the off-site area containing the public sidewalk and will be liable to any pedestrian who is injured due to the hazard created by the roots of trees he maintains since the trunks of the trees are located on his property. [Alpert v. Villa Romano Homeowners Association (2000) 81 CA4th 1320]