It would come as a shock to most landlords to learn that they can potentially be held liable for injuries which occur on land not owned, or even controlled, by them. But, this is in fact the case after a recent ruling in California where a landlord was held liable for the death of a tenant's child which took place on the busy street in front of the owner's property. Then again, maybe this is not so surprising, but rather a natural progression of tort liability based on the belief that someone with money must always be at least partially responsible when an injury occurs, no matter how far removed from the incident.
The recent ruling out of California involved a little boy who lived with his parents and sister in an apartment complex which had a private sidewalk in front of the building leading to a small children's play area. A steep driveway adjacent to the sidewalk led to a busy four-lane public street below. Children had been seen in the past careening down the driveway on wheeled vehicles, but they would stop before entering the street by driving on to the grass next to the driveway. The owner of the complex was aware that this was going on and several residents asked that a fence be built to keep the children on the sidewalk and off the driveway.
No fence was ever built and one day as the little boy at the center of this lawsuit was riding his big wheel on the sidewalk he lost control, veered down the driveway, and into the busy street below where he was struck by an automobile. He later died from his injuries.
At trial, the landlord presented evidence that he did not own or have control over the area where the accident occurred and moved to have the case thrown out. The trial court did in fact throw out the case because the commonly accepted rule was that an owner or occupier of land's duty of care did not extend beyond those areas in the owner's possession and control. On appeal, however, the higher court ruled that "A landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off-site if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site."
The real key to this case was foreseeability. The court of appeal decided to hold this landlord liable because it was foreseeable that if the kids kept playing near the driveway eventually one of them was going to end up in the traffic below. The court could have held that the danger was equally foreseeable by the parents of the child so they should have kept him away from the danger. Instead, they decided to hold the landlord to a higher duty of care. This ruling should cause property owners to carefully consider conditions at or about their property line which might pose a danger to their tenants or guests. As this modern trend of increased tort liability catches on, some courts will continue to search carefully to determine whether the landowner occupies such a position that a logical and legal basis exists upon which to impose liability under the circumstances.
The issue of who has control over the property where the accident occurred has effectively been removed from the equation by this and other similar rulings. It no longer matters where the hazardous conditions exists, but only whether one has knowledge of it. The problem is that the duty of care which once required landowners to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury has been transformed. Now, it will be up to juries to decide whether a landlord should have pro-actively protected his or her residents from a potentially dangerous condition which was not in the landowner's control. This decision this decision and expansion of the duty of care taken very seriously.
We all know there are children and adults who put their lives in danger by ignoring those artificial conditions which may hurt them. this decision expands the basis for such people to obtain judgments against those who do not even have control of the land. It is imperative for landowners to take a few simple precautions. One, make sure your insurance policy is up-to-date and will cover you in the event you are held liable for injuries which occur on adjacent property. Two, be pro-active in uncovering dangerous conditions on your property and adjacent lands. Three, take all economically feasible actions necessary to prevent injuries related to any dangerous conditions including installing proper protections, warnings or safeguards. In the end such actions may not completely remove the risk of litigation against the landowner, but they increase the odds of avoiding liability. Remember, the most cost-effective way to defend a lawsuit is to prevent the injury from happening in the first place.