California Supreme Court Reports

ALCARAZ v. VECE, 14 Cal.4th 1149 (1997)

929 P.2d 1239, 60 Cal.Rptr.2d 448

GILARDO C. ALCARAZ, Plaintiff and Appellant, v. PETER VECE et al.,

Defendants and Respondents.

Docket No. S050761.

Supreme Court of California.

January 31, 1997.

Appeal from Superior Court of San Mateo County, No. 360882,
Walter H. Harrington, Jr., Judge.
Page 1150

[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES
ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE
NOT DISPLAYED.]
Page 1151

[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES
ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE
NOT DISPLAYED.]
Page 1152

COUNSEL

B.E. Bergesen III, O'Brien & Harrington, William K. O'Brien and
Colleen Duffy-Smith for Plaintiff and Appellant.

Joni Brandvold, Arnelle, Hastie, McGee, Willis & Greene, Otis
McGee, Jr., and Jesper I. Rasmussen for Defendants and
Respondents.

Gassett, Perry & Frank and Jacquelyn K. Wilson as Amici Curiae on
behalf of Defendants and Respondents.

OPINION

GEORGE, C.J.

Plaintiff Gilardo C. <Alcaraz> was injured when he stepped into a
water meter box located in the lawn in front of the rental
property of which he was a tenant. The cover of the meter box
either was broken or missing. He sued his landlords, but the
superior court granted summary judgment for defendants because
the meter box was not located on defendants' property, but within
an adjacent strip of land owned by the city, running between the
sidewalk and defendants' property line.

For the reasons that follow, we affirm the Court of Appeal's
ruling that the superior court erred in granting summary judgment
for defendants,
Page 1153
because we conclude that a triable issue of fact exists as to
whether defendants exercised control over the narrow strip of
land owned by the city, that was located adjacent to, and was not
noticeably separate from, defendants' property, and thus had a
duty to warn plaintiff of, or protect him from, the hazard in
question. Our determination that a triable issue of fact exists
as to whether defendants exercised control over the property on
which the hazard was located resolves the issue whether the
superior court properly granted summary judgment for defendants
and, therefore, we have no occasion in this case to decide under
what circumstances, if any, a possessor of land may owe a duty to
warn persons on the property of a hazard located on adjacent
property that he or she does not own, possess, or control.

I

On April 17, 1991, Gilardo C. <Alcaraz> filed a complaint against
the owners of the rental property of which he was a tenant,
located at 141-147 Lincoln Avenue in the City of Redwood City
(the city), alleging he had suffered personal injuries. In an
amended complaint, he alleged that on the evening of April 17,
1990, he was injured when he stepped into a utility meter box
embedded in the lawn next to the sidewalk in front of the
building in which he was renting an apartment. Plaintiff alleged
that defendants had actual notice that the cover to the utility
box either was broken or missing.

On November 12, 1993, defendants filed a cross-complaint
against the city and its water department, alleging that
cross-defendants owned and maintained the meter box into which
plaintiff had fallen and knew, or should have known, of its
dangerous condition.

Defendants thereafter filed a motion for summary judgment on
the complaint, asserting they owed no duty to plaintiff because
they did not own either the meter box or the land upon which it
was located. The evidence offered in support of the motion for
summary judgment included a declaration from Jon Lynch, senior
civil engineer for the city, stating that the meter box was
located within a 10-foot-wide strip of land owned by the city
that extends from the curb of Lincoln Avenue to defendants'
property line, encompassing the sidewalk and an additional
approximately 2-foot-wide strip of lawn area adjacent to
defendants' property line. The closest edge of the meter box was
one foot from defendants' property line. Attached as an exhibit
to the declaration was a copy of a page from the city's utility
block book showing that the meter box was located within this
10-foot-wide strip of land owned by the city.

Defendants also offered in support of the motion the
declaration of a licensed land surveyor, John May, who stated
that he had conducted a survey
Page 1154
and concluded "that the subject water meter is located outside
the property boundaries of 141-147 Lincoln Avenue." A hand-drawn
map attached as an exhibit to the declaration indicates that the
nearest edge of the water meter is three inches from defendants'
property line, and that the water meter is located within the
strip of land owned by the city, specifically in an area
approximately two feet wide lying between the sidewalk and
defendants' property line.

In his opposition to defendants' motion for summary judgment,
plaintiff maintained that defendants were responsible for his
injuries because they "either own a portion of the property on
which the meter box is located, . . . or more importantly,
defendants maintain and control the subject premises." Plaintiff
submitted photographs of the premises where the accident occurred
and excerpts of a deposition of defendant Peter Vece, to
establish that (1) prior to and at the time of the accident,
defendants maintained the entire lawn from the front of the
apartment building to the sidewalk, including that portion of the
lawn that lies on the strip of land owned by the city, and (2)
subsequent to the incident in question, defendants constructed a
fence that bordered the sidewalk and enclosed the entire lawn in
front of their property, including the approximately two-foot
wide portion of the strip of land owned by the city lying between
the sidewalk and defendants' property line.

In addition, plaintiff submitted the declaration of Stephen
Amer, a neighbor who resided in the same building at the time of
the accident. The declaration stated that, on several occasions,
Amer had informed both defendant Vece and "various `Water Company
meter readers'" that the cover of the meter box either was broken
or missing. Plaintiff also submitted the declaration of Stanley
Gray, a licensed land surveyor, who stated that the had conducted
a survey of defendants' property and concluded "that the
southerly right-of-way line of Lincoln Avenue, Redwood City,
California cannot be ascertained within standard accuracy
(1:10,000). Making an absolute statement about this boundary line
is an impossibility as no recoverable monuments were set in 1902
within the subdivision. I found a variation of professional
opinions in a total range of nine inches. It is reasonably
probable, therefore, that the subject water meter box is not
entirely located on property owned by the City of Redwood City,
but rather a portion thereof may be located inside the property
boundaries of 141-147 Lincoln Avenue, Redwood City,
California."[fn1]

The superior court granted defendants' motion for summary
judgment, issuing a written opinion concluding that no triable
issues of fact existed,
Page 1155
because defendants neither owned nor exercised control over the
meter box and "it is undisputed that the City of Redwood City
owns the real property upon which the box is located . . . and
exercises control over the box. . . ."

The Court of Appeal reversed the summary judgment rendered by
the superior court. The appellate court agreed with the lower
court "that the declarations filed by defendants demonstrated
that there was no triable issue as to the fact of ownership of
the meter box, because defendants neither owned nor exercised
control over the meter box." The Court of Appeal also agreed that
there was "no triable issue of fact [disputing] that the city,
not defendants, owned the real property on which the meter box
was located." But the appellate court went on to conclude that
the superior court had erred in granting summary judgment for
defendants, because there existed a "triable issue of fact as to
whether the combination of the circumstances of defendants'
actual or apparent control over immediately adjacent premises and
the foreseeability of injury to plaintiff created a duty on the
part of defendants to either warn plaintiff of the danger, or
protect him from it, or both." The Court of Appeal reasoned that
the circumstances that "defendants maintained the lawn completely
surrounding the meter box" and that defendant Vece had actual
notice of the broken or missing cover, gave rise to a duty to
protect or warn plaintiff.

II

A

(1a) The superior court granted summary judgment in favor of
defendants on the grounds that they did not own, or exercise
control over, the water meter box into which plaintiff fell, and
did not own the land upon which the meter box was located.
Summary judgment is proper "if all the papers submitted show that
there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." (Code
Civ. Proc., § 437c Civ. Proc., subd. (c).)

The circumstance that defendants did not own or exercise
control over the meter box itself does not entitle them to
judgment as a matter of
Page 1156
law. (2) "The proper test to be applied to the liability of the
possessor of land . . . is whether in the management of his
property he has acted as a reasonable man in view of the
probability of injury to others. . . ." (Rowland v. Christian
(1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561, 32
A.L.R.3d 496].) This requires persons "to maintain land in their
possession and control in a reasonably safe condition.
[Citations.]" (Ann M. v. Pacific Plaza Shopping Center (1993)
6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].)

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. For example, in Austin v. Riverside Portland
Cement Co. (1955) 44 Cal.2d 225, 233 [282 P.2d 69], this
court held that the owner of land could be held liable for failing to
warn its tenant of the danger posed by use of a crane near
overhead electrical lines, even though the landowner neither
owned nor maintained the electrical lines. The Court of Appeal
reached the same conclusion on similar facts in Krongos v.
Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393
[9 Cal.Rptr.2d 124]. (1b) Accordingly, in the present case, if
the condition of the meter box created a dangerous condition on
land that was in defendants' possession or control, defendants
owed a duty to take reasonable measures to protect persons on the
land from that danger, whether or not defendants owned, or
exercised control over, the meter box itself. In other words, if
the presence of the broken meter box made it dangerous to walk
across land in defendants' possession or control, defendants had
a duty to place a warning or barrier near the box to protect
persons on the land from that danger.

The following hypothetical situation illustrates this point. If
a live power transmission line falls, creating a hazard, the
possessor of the property on which the power line has fallen, who
knows of the hazard, cannot escape liability for injuries to
persons who enter the land and encounter the power line simply
because the land possessor does not own the power line and lacks
the authority to disconnect the line or remove it. A possessor of
land who knows of the hazard would have a duty to erect a barrier
or warn persons entering the land of the danger, whether or not
the possessor of the land has the authority to eliminate the
hazard.

Defendants rely upon the decision in Hamilton v. Gage Bowl,
Inc. (1992) 6 Cal.App.4th 1706 [8 Cal.Rptr.2d 819] to support
their contention that they are not liable for plaintiff's
injuries because they did not control the meter box itself. In
Hamilton, the plaintiff was injured while standing in the
parking lot of a bowling alley when a sign fell from the wall of
an adjacent
Page 1157
building. The bowling alley did not own the sign or the wall, but
had refurbished and rehung another sign on the wall and had
repainted a small portion of the wall to cover graffiti, all
without seeking the owner's permission. The plaintiff argued that
the bowling alley had exercised sufficient control over the wall
to warrant imposition of a duty to inspect the sign that fell,
but the Court of Appeal disagreed, observing that although the
defendant had exercised some degree of control over the wall, it
had not exercised control over the sign that caused the
plaintiff's injuries. The Court of Appeal concluded: "It follows
that plaintiff's proposed evidence was insufficient to establish
a duty on defendant's part to discover the dangerous condition of
the sign. . . ." (Id. at p. 1713.)

Hamilton is distinguishable from the present case. Unlike
Hamilton, the issue in the case before us is not whether
defendants had a duty to discover a dangerous condition located
on property they did not own. Plaintiff in the present case
alleged that defendants had received actual notice of the
defective condition of the meter box. The issue, therefore, is
not whether defendants had a duty to inspect or repair the meter
box, but whether, in light of their alleged knowledge of the
dangerous condition of the meter box, they had a duty to persons
entering the strip of land to protect them from, or warn them of,
the hazard. Defendants could satisfy such a duty by posting
warnings or erecting barricades on the property under their
control, and would not have been required to inspect or repair
the meter box.

Hamilton would be more like the present case if the bowling
alley had received actual notice that the sign hanging over its
parking lot was secured to the wall improperly and in danger of
falling. Under such circumstances, the bowling alley would have
had a duty to persons using its parking lot to protect them from,
or warn them of, the dangerous sign.

B

Neither does the circumstance that defendants in the present
case did not own the land on which the meter box was located
entitle them to judgment as a matter of law. In the present case,
the superior court found it was undisputed that defendants did
not own the narrow strip of land on which the meter box was
located, and plaintiff does not challenge that determination
here. There remains a triable issue of fact, however, whether
defendants exercised control over that land and thus had a duty
to protect or warn plaintiff.

(3a) "`[T]he duties owed in connection with the condition of
land are not invariably placed on the person [holding title] but,
rather, are owed by
Page 1158
the person in possession of the land [citations] because [of the
possessor's] supervisory control over the activities conducted
upon, and the condition of, the land.'" (Sprecher v. Adamson
Companies (1981) 30 Cal.3d 358, 368 [178 Cal.Rptr. 783,
636 P.2d 1121]; Preston v. Goldman (1986) 42 Cal.3d 108, 119
[227 Cal.Rptr. 817, 720 P.2d 476] ["Sprecher demonstrates that we
have placed major importance on the existence of possession and
control as a basis for tortious liability for conditions on the
land."].) This court recognized in Johnston v. De La Guerra
Properties, Inc. (1946) 28 Cal.2d 394 [170 P.2d 5] that a
defendant who lacks title to property still may be liable for an
injury caused by a dangerous condition on that property if the
defendant exercises control over the property. One of the
defendants in Johnston operated a restaurant in a portion of a
building leased from the owner of the property. A prospective
customer of the restaurant fell while walking from her automobile
onto an unlit portion of a walkway leading to the restaurant. The
walkway was not situated within the premises leased by the
defendant. This court observed: "A tenant ordinarily is not
liable for injuries to his invitees occurring outside the leased
premises on common passageways over which he has no control.
[Citations.] Responsibility in such cases rests on the owner, who
has the right of control and the duty to maintain that part of
the premises in a safe condition. (4)(See fn. 2.) It is clear,
however, that if the tenant exercises control over a common
passageway outside the leased premises, he may become liable to
his business invitees if he fails to warn them of a dangerous
condition existing thereon."[fn2] (28 Cal.2d at p. 401.)

(5) We subsequently restated the principles announced in
Johnston: "The courts have long held that one who invites
another to do business with him owes to the invitee the duty to
exercise reasonable care to prevent his being injured on `the
premises.' The physical area encompassed by the term `the
premises' does not, however, coincide with the area to which the
invitor possesses a title or a lease. The `premises' may be less
or greater than the invitor's property. The premises may include
such means of ingress and egress as a customer may reasonably be
expected to use. The crucial element is control." (Schwartz
v. Helms Bakery Limited (1967) 67 Cal.2d 232, 239
[60 Cal.Rptr. 510, 430 P.2d 68], fns. omitted, italics added.)

The Restatement Second of Torts uses the phrase "possessor of
land," rather than the terms "owner" or "lessee," to describe who
may be liable for injuries caused by a dangerous condition of
land. (See, e.g., Rest.2d Torts,
Page 1159
§ 343, p. 215.) Section 328E (p. 170) of the Restatement Second
of Torts defines the term "possessor of land" to include "a
person who is in occupation of the land with intent to control
it. . . ." The comment to this section explains: "The important
thing in the law of torts is the possession and not whether it is
or is not rightful as between the possessor and some third
person." (Id., § 328E, com. a, p. 171.)

(3b) In similar fashion, the Courts of Appeal have recognized
that a defendant's potential liability for injuries caused by a
dangerous condition of property may be based upon the defendant's
exercise of control over the property. "In common law parlance,
the possessor of land is the party bearing responsibility for its
safe condition. Possession, in turn, is equated with occupancy
plus control. [Citations.] Thus, in identifying the party
vulnerable to a verdict, control dominates over title. `The
crucial element is control.' [Citation.]" (Low v. City of
Sacramento (1970) 7 Cal.App.3d 826, 831 [87 Cal.Rptr. 173];
see also Both v. Harband (1958) 164 Cal.App.2d 743, 748
[331 P.2d 140] ["[A]ctual exercise of control by the tenant [over a
portion of leased property], even though the lease itself confers
no right of such control upon him, can subject him to
liability."].)[fn3]

In Orthmann v. Apple River Campground, Inc. (7th Cir. 1985)
757 F.2d 909, the foregoing principles were applied to
circumstances analogous to those in the present case. The
plaintiff in that case rented an inner tube in order to float
down a river, and stopped at a place on the riverbank from which
a tree extended over the river. The tree frequently was used for
Page 1160
diving. The plaintiff dived into the river, struck his head on a
submerged rock, and was injured. He sued the association that had
rented the inner tube to him and that owned most of the land
bordering this stretch of the river — but not the land from which
the plaintiff dove. That section of the riverbank was owned by
the Montbriand family.

In permitting the plaintiff to proceed with his suit, the
federal appellate court stated that the case before it was
difficult, because "defendants do not own the property from which
Orthmann dove. But according to an affidavit . . ., shortly after
the accident the defendants came on the Montbriands' land without
asking their permission, and cut the tree down. The affidavit
also states that the Montbriands had seen the defendants cleaning
and maintaining the banks of the river on the Montbriands' land.
It is possible to infer that the defendants, though they did not
own the Montbriand property, treated it as if they did — the
cutting down of the tree after the accident being a dramatic
assertion of a right normally associated with ownership or at
least (which is all that is necessary, as we are about to see)
possession.

"This is not to say that the defendants could be held liable,
under any tort theory we know, if their customers just strayed
onto someone else's property and got injured there. . . . But if
the landowner treats the neighbor's property as an integral part
of his, the lack of formal title is immaterial. Whoever controls
the land is responsible for its safety. [Citation.] That is why
it is normally the tenant rather than the landlord who is liable
to anyone injured as a result of a dangerous condition on leased
land and why this field of tort law is more accurately described
as land occupiers' and possessors' liability than as landowners'
liability. [Citations.] [¶] It would make no sense to treat an
occupier more leniently just because his rights in the land were
less well-defined than a tenant's — or maybe were nonexistent."
(757 F.2d at pp. 913-914.)

In Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944 [191
App.D.C. 242], the plaintiff was driving on a public street that ran
through a federally owned and maintained park, when a tree fell upon
his automobile, injuring him. The plaintiff sued the District of
Columbia, which owned and maintained the street, and the United
States Government, which owned and maintained the park. The tree that
fell upon plaintiff, however, had stood on a tract of land owned by
the Government of India. When the park was established in 1945, the
United States had attempted to purchase this land. The Government of
India refused to sell the land, but promised to preserve the
"`natural park-like character' of the tract." (Id. at p. 949.) The
appellate court observed: "Pursuant to this agreement, the tract of
land on which the fallen tulip poplar stood has been left in a wooded state
indistinguishable
Page 1161
from contiguous federal parkland. From 1945 through the date of
appellee's injuries, the tract was marked with wooden stakes and
granite boundary monuments bearing United States insignia,
identical with those located on federally owned lands. In
addition, the wooden stakes had been periodically repainted,
replaced, or restenciled by employees of the National Park
Service, a federal agency, in the interim since 1945. [¶] . . .
Park Service employees . . . testified at the trial in the
District Court that not until a year after the occurrence of the
accident involved in this appeal did it come to their attention
that the tract of land upon which the tulip poplar stood was not
federally owned [citation]; for at least ten years prior to the
accident the Service undertook to service and maintain the tract
as it did Class C federal parkland." (Ibid., fn. omitted.)

Based upon the foregoing circumstances, the Court of Appeals
concluded that the United States Government owed a duty "to use
reasonable care to protect passers-by on adjoining public ways
from hazardous trees" on the tract of land owned by the
Government of India. (Husovsky v. United States, supra,
590 F.2d 944, 952.) The court observed: "The duties owed in
connection with the condition of land are not invariably placed
on the person in whom the land is titled, but, rather, are owed
by the person in possession of the land, [citations], because the
occupant or possessor has supervisory control over the activities
conducted upon, and the condition of, the land. [¶] . . . We hold
that having assumed such notorious and open public display of
control of the tract, the United States had a duty to exercise
reasonable care in its supervision thereof. . . ." (Id. at p.
953.)

The same reasoning applies where a plaintiff is injured in a
defendant's fenced backyard by a latent dangerous condition known
to the defendant. Under such circumstances, the defendant could
not escape liability merely by establishing that the fence was
not located on the property line and that a neighbor, rather than
the defendant, actually held title to the land containing the
dangerous condition. As long as the defendant exercised control
over the land, the location of the property line would not affect
the defendant's potential liability.

(1c) In the present case, the superior court found that
defendants held no legal interest in the land on which the meter
box was located. Plaintiff does not challenge that ruling in this
court. But summary judgment should not have been granted for
defendants, because a triable issue of fact exists concerning
whether defendants nevertheless exercised control over the
property surrounding the meter box and thus had a duty to protect
plaintiff from, or warn him of, the hazardous condition of the
meter box. Evidence was introduced establishing that defendants
maintained the lawn that covered the
Page 1162
approximately two-foot-wide portion of the strip of land owned by
the city surrounding the meter box and adjoining their property
and that, following plaintiff's injury, defendants constructed a
fence that enclosed the entire lawn, including the portion
located on the narrow strip of land owned by the city. (6)(See
fn. 4.) From this evidence, a reasonable trier of fact could
infer that defendants exercised control over this approximately
two-foot-wide portion of the strip of land owned by the city and
treated the land surrounding the meter box, which bordered
defendants' property, as an extension of their front lawn.[fn4]

(3c) Justice Brown's dissent is correct in stating that
"property owners are liable for injuries on land they own,
possess, or control." (Dis. opn. of Brown, J., post, at p.
1190.) But her opinion seems to overlook the fact that the phrase
"own, possess, or control" is stated in the alternative.
(Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,
134 [211 Cal.Rptr. 356, 695 P.2d 653].) A defendant need not
own, possess and control property in order to be held liable;
control alone is sufficient.

Justice Brown's dissent would add a requirement, not found in
this court's decision in Isaacs v. Huntington Memorial
Hospital, supra, 38 Cal.3d 112, that a landowner may be held
liable for an injury on adjacent property only if the landowner
both exercises control over that property and derives a
commercial benefit from the portion of the property that caused
the injury. (Dis. opn. of Brown, J., post, at pp. 1196-1197.)
Such a "commercial benefit" requirement is not found in any
decision of this court, but has been discussed by two recent
decisions of the Courts of Appeal, Swann v. Olivier (1994)
22 Cal.App.4th 1324 [28 Cal.Rptr.2d 23] and Princess Hotels
Internat., Inc. v. Superior Court (1995) 33 Cal.App.4th 645
[39 Cal.Rptr.2d 457]. Prior to these recent decisions, no
California case had stated that a property owner could be held
liable for an injury caused by a dangerous condition on
Page 1163
adjacent property only if the defendant derived a commercial
benefit from the adjacent property.

The phrase "commercial benefit" apparently first was used in
this context in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379
[243 Cal.Rptr. 627], which held that a supermarket was not liable for
injuries to a customer suffered in a traffic accident that took place
on the public street in front of the market. The plaintiff alleged
that the market was liable because it used the street and sidewalk
"for the commercial benefit of the supermarket for the delivery of
goods and as a customer parking area." (Id. at p. 382.) The Court of
Appeal rejected the plaintiff's reliance upon the concept of
commercial benefit and instead based its decision upon the
defendant's lack of control over the public street: "[A]lthough it is
indisputable that the scope of premises liability has been greatly
expanded in the last 10 years, plaintiff is attempting to extend the duty
beyond the premises and into an undefined zone of `commercial
use.' The imposition of such a duty is foreign to the concept
upon which all premises liability is based, i.e., that possession
includes the attendant right to manage and control, thereby
justifying the imposition of a duty to exercise due care in the
management of the property. [Citations.]" (Id. at p. 386,
italics in original.)

The decision in Southland Corp. v. Superior Court (1988)
203 Cal.App.3d 656 [250 Cal.Rptr. 57] used the phrase
"commercial benefit" in discussing whether there was a triable
issue of fact whether a business exercised sufficient control
over an adjacent parking lot to support a finding of liability
for injuries to a customer who was assaulted a few feet beyond
the property line of the store. The attack occurred adjacent to
the store in a parking lot that was not owned or leased by the
store, but that often was used by the store's customers. The
Court of Appeal noted that the plaintiff's belief that the store
controlled this parking lot "may not have been unreasonable,"
observing "that to the extent a greater parking capacity
increased sales, then the store realized a commercial benefit
from such use of the lot." (Id. at p. 661.) But it is clear
that the Court of Appeal considered such commercial benefit to be
but one factor bearing upon the dispositive issue of whether the
store exercised control over the adjacent property: "The record
reflects evidence, and legitimate inferences therefrom, which
would support a jury's conclusion that petitioners did exercise a
sufficient control over the lot so as to legally permit the
imposition of a duty to those customers using the lot. For
example, (1) only eight marked parking spaces were provided on
the store's premises and these often proved inadequate, (2)
customers, including [the plaintiff], regularly used the adjacent
lot to park while shopping at the store, (3) petitioners' lease
apparently authorized the nonexclusive use of the adjacent lot
for customer parking, (4) petitioners were aware that their
Page 1164
customers regularly used the lot and took no action to limit or
discourage such use, (5) a reasonable inference can be drawn that
petitioners realized a significant commercial benefit from their
customers' use of the lot, (6) the store premises and the
adjacent lot had become a hangout for local juveniles, among whom
fist fights sometimes broke out, and (7) the store employees had,
on a number of occasions, taken action, including the request of
police assistance, to remove juvenile loiterers from both the
store premises and the adjacent lot." (Id. at pp. 666-667, fn.
omitted.)

The court thus concluded: "Where, as here, there is evidence
that petitioners received a commercial advantage from property
they apparently had a leasehold right to use (which use by their
customers they at least passively encouraged) and where their
business was itself the attraction for both customers and
loiterers, it is overly simplistic for the issue of control to be
resolved solely by reference to a property boundary line and the
fortuitous circumstance that the attack on [the plaintiff] took
place just 10 feet beyond it. While we can not conclude that
these circumstances establish that petitioners did exercise
control over the adjacent lot, we do find that they are
sufficient to raise an issue of fact that must be resolved by a
jury." (203 Cal.App.3d at p. 667.)

In Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578
[19 Cal.Rptr.2d 436], migrant farm workers, living in a makeshift
structure on undeveloped land adjacent to the defendants' farms, were
injured when the structure caught fire. The plaintiffs argued that
the defendants owed a duty to make the premises safe or warn of the
dangers because they "encouraged the labor camp environment to exist,
and gained an economic benefit from it." (Id. at p. 1589.) The Court
of Appeal rejected this approach, relying instead upon the settled
rule that "`[t]he law of premises liability does not extend so far as
to hold [the landowner] liable merely because its property exists next to
adjoining dangerous property and it took no action to influence
or affect the condition of such adjoining property.'" (Id. at
p. 1590.)

This was the state of the law when the Court of Appeal decided
Swann v. Olivier, supra, 22 Cal.App.4th 1324. The holding in Swann is
unremarkable. It held, using language consistent with our holding in
the present case, that the owners of a private beach were not liable
for injuries sustained by the plaintiff while in the ocean adjacent
to the property because the defendants "do not own or control the
ocean, and they are not responsible for injuries that take place in
that ocean." (Id. at p. 1326.) The opinion in Swann, however, goes on
to observe that, in several instances, businesses have been held liable for
injuries that occurred on adjacent property when the business
Page 1165
has "received a special commercial benefit from the area of the
injury plus had direct or de facto control of that area." (Id.
at p. 1330.) In support of this observation, which is unnecessary
to the holding in that case, the court in Swann cites this
court's decision in Johnston v. De La Guerra Properties, Inc.,
supra, 28 Cal.2d 394, in which the owner of a restaurant was
held liable for injuries sustained by a prospective customer
while entering an unlit portion of a walkway leading to the
restaurant, despite the circumstance that the walkway was not
situated within the premises leased by the defendant.

As noted above, this court held in Johnston v. De La Guerra
Properties, Inc., supra, 28 Cal.2d 394, 401, "that if the tenant
exercises control over a common passageway outside the leased
premises, he may become liable to his business invitees if he
fails to warn them of a dangerous condition existing thereon."
Nothing in our opinion in Johnston suggests that, in addition
to exercising control of the property that caused the injury, the
defendant also must derive a commercial benefit from that
property. The term "business invitees" was merely a reference to
the "rigid common law classifications" of trespasser, licensee,
and invitee which we since have abandoned. (Rowland v.
Christian, supra, 69 Cal.2d at p. 118.)

The other Court of Appeal decision to propose a "commercial
benefit" requirement, Princess Hotels Internat., Inc. v.
Superior Court, supra, 33 Cal.App.4th 645, 646, also involved
injuries sustained in the ocean adjacent to the defendants'
property and holds, in language consistent with the established
rule, "that a hotel has no duty to warn its guests of a dangerous
condition of adjacent property over which the hotel has no
control, to wit, the ocean currents." Relying upon the decision
in Swann, however, the Court of Appeal went on to note that the
circumstance that the hotel derived an obvious commercial benefit
from its proximity to the ocean was insufficient to establish
liability: "The California cases, as correctly analyzed by
Swann, require control as well as a commercial benefit; and the
ocean is simply not within the control of humankind." (Id. at
p. 652, italics omitted.) Again, this discussion of commercial
benefit is unnecessary to the decision. The absence of liability
in that case follows from the defendants' lack of control over
the property that caused the injury.

Justice Brown's dissent cites no case, and we are aware of
none, in which a defendant that exercised control over property
on which an injury occurred was found not liable simply because
the defendant derived no commercial benefit from that property.

The opinions in Swann and Princess Hotels, and Justice
Brown's dissent, fail to explain why liability for injuries on
adjacent property should depend
Page 1166
upon whether the defendant derives a commercial benefit from that
property. Nothing in our opinion in Johnston v. De La Guerra
Properties, Inc., supra, 28 Cal.2d 394, suggests that the result
in that case would have been different if, instead of being the
owner of a business, the defendant had been a homeowner who had
been sued by a social guest whom the homeowner had directed to
park on adjacent property and use an unsafe walkway controlled,
but not owned, by the homeowner. If a visitor is injured on
property controlled by the defendant, liability does not depend
upon whether the defendant derived a commercial benefit from the
property.[fn5] We disapprove any language to the contrary in
Swann v. Olivier, supra, 22 Cal.App.4th 1324, and Princess
Hotels Internat., Inc. v. Superior Court, supra, 33 Cal.App.4th 645.

C

(7) In the superior court, defendants objected to the
evidence introduced by plaintiff reflecting that defendants
maintained the lawn on the strip of land owned by the city and,
subsequent to the incident at issue, constructed a fence
surrounding the entire lawn. Defendants argued this evidence was
irrelevant and violated the rule set forth in Evidence Code
section 1151 Evid. that evidence of subsequent remedial conduct "is
inadmissible to prove negligence." (Italics added.) In granting
summary judgment for defendants, the superior court sustained
defendants' objections to this evidence.

Plaintiff argued on appeal that these evidentiary rulings were
incorrect. The Court of Appeal did not rule expressly on these
issues in its opinion reversing the summary judgment, but
included in its statement of facts the circumstances that
defendants had maintained the lawn surrounding the meter box and,
subsequent to the incident at issue, had constructed a fence
around the entire lawn. On review before this court, neither
party briefed the issue of the admissibility of this evidence,
and both parties mention in describing the circumstances of the
case that defendants had maintained the lawn surrounding the
meter box and, subsequent to the incident at issue, constructed a
fence around the entire lawn.

We agree with the implied ruling of the Court of Appeal that
the superior court erred in excluding this evidence regarding
defendants' maintenance of the lawn and their construction of the
fence. This evidence was highly relevant regarding whether
defendants exercised control over the strip of land owned by the
city.
Page 1167

"`Relevant evidence' means evidence . . . having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action." (Evid. Code, §
210 Evid.) As explained above, whether defendants exercised control
over the strip of land owned by the city on which the meter box
was located is a "disputed fact that is of consequence to the
determination of the action." (Ibid.) Indeed, if defendants
exercised control over this strip of land, it appears clear they
owed a duty to protect or warn plaintiff.

Evidence that defendants maintained the lawn on the strip of
land owned by the city certainly has some "tendency in reason to
prove or disprove" whether defendants exercised control over that
land. This is not to say that the simple act of mowing a lawn on
adjacent property (or otherwise performing minimal, neighborly
maintenance of property owned by another) generally will,
standing alone, constitute an exercise of control over property
and give rise to a duty to protect or warn persons entering the
property. But it cannot be doubted that such evidence is relevant
on the issue of control.

The circumstance that defendants constructed a fence
surrounding the narrow, city-owned strip of land that bordered
their property also is highly relevant. It is obvious that the
act of enclosing property with a fence constitutes an exercise of
control over that property. Code of Civil Procedure section 323 Civ. Proc.,
which defines adverse possession under a written instrument or
judgment, states that "land is deemed to have been possessed and
occupied . . . [¶] . . . [¶] 2. Where it has been protected by a
substantial enclosure." In Lofstad v. Murasky (1907) 152 Cal. 64,
69 [91 P. 1008], this court defined "actual possession" of
real property as "an appropriation of the land by the claimant
such as will convey to the community where it is situated visible
notice that the land is in his exclusive use and enjoyment; an
appropriation manifested by either inclosing it, or cultivating
it, or improving it or adapting it to such uses as it is capable
of." Defendants' maintenance of the lawn and construction of the
fence could support a finding that defendants took possession of
the strip of land owned by the city and exercised control over
it.

Defendants argued in the superior court that construction of
the fence could not be considered in determining whether
defendants exercised control over the property because the fence
was constructed after plaintiff was injured. We agree that the
circumstance that the fence was constructed after plaintiff was
injured lessens the probative value of this evidence in
demonstrating that defendants were exercising control over the
property at the time plaintiff was injured, but it does not
render the evidence irrelevant. Defendants' act of building the
fence following plaintiff's injury is circumstantial
Page 1168
evidence that defendants also exercised possession and control
over the property at the time plaintiff was injured. (See, e.g.,
Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555
[85 Cal.Rptr. 308] ["evidence that Taubman's carpenters installed
handrails at the point where Morehouse fell following his injury
. . . was properly . . . received by the court . . . on the issue
. . . of control of the premises, and as to whose duty it was
under the contract to take such safety measures"]; 1 Witkin, Cal.
Evidence (3d ed. 1986) Circumstantial Evidence, § 444, p. 413
["where the issue is whether a defendant was the owner,
possessor, or person in control of property involved in the
injury, his subsequent repairs (which would scarcely be made by a
stranger) may be shown to meet his denial of such control"]; see
generally, Annot., 15 A.L.R.5th 119, 239 [citing cases that hold
"that evidence of repairs, improvements, safety precautions, or
like remedial or preventive measures taken after an injury may be
admitted for the purpose of establishing that at the time of the
accident, the defendant owned or controlled the place, thing, or
activity which occasioned the injury, at least where ownership or
control is controverted, and subject to other appropriate
limitations."].) The circumstance that defendants maintained the
lawn on the city's narrow strip of land both at the time of and
following plaintiff's injury indicates that the construction of
the fence subsequent to the injury was but a further, consistent
indication of the extent to which defendants treated the city's
property as their own.

As noted above, in Orthmann v. Apple River Campground, Inc.,
supra, 757 F.2d 909, the court considered a suit for personal
injuries brought by a customer of the defendants who was injured
diving into a river from land owned by a neighbor of the
defendants. In allowing the suit to proceed, the court observed:
"What makes this case more difficult than our hypothetical
variants is that the defendants do not own the property from
which Orthmann dove. But according to an affidavit of one of the
Montbriands, which Orthmann included in the appendix to his brief
in this court, shortly after the accident the defendants came on
the Montbriands' land without asking their permission, and cut
the tree down. The affidavit also states that the Montbriands had
seen the defendants cleaning and maintaining the banks of the
river on the Montbriands' land. It is possible to infer that the
defendants, though they did not own the Montbriand property,
treated it as if they did — the cutting down of the tree after
the accident being a dramatic assertion of a right normally
associated with ownership or at least (which is all that is
necessary, as we are about to see) possession." (Id. at p.
913.)

As noted above, defendants also argued in the superior court
that admission of evidence that they constructed the fence after
plaintiff was injured violated Evidence Code section 1151 Evid., which
states: "When, after occurrence
Page 1169
of an event, remedial or precautionary measures are taken, which,
if taken previously, would have tended to make the event less
likely to occur, evidence of such subsequent measures is
inadmissible to prove negligence or culpable conduct in
connection with the event." This statute does not apply, however,
because evidence regarding construction of the fence was
admitted, not to prove negligence, but to demonstrate that
defendants exercised control over the strip of land owned by the
city. As we stated in Ault v. International Harvester Co.
(1974) 13 Cal.3d 113, 118 [117 Cal.Rptr. 812, 528 P.2d 1148, 74
A.L.R.3d 986], "Section 1151 Evid. by its own terms excludes evidence
of subsequent remedial or precautionary measures only when such
evidence is offered to prove negligence or culpable conduct."
(Italics added; see also Fed. Rules Evid., rule 407, 28 U.S.C.
which employs language nearly identical to Evidence Code section
1151 Evid. and then explains: "This rule does not require the exclusion
of evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.")

Morehouse v. Taubman Co., supra, 5 Cal.App.3d 548, involved the
liability of a general contractor for injuries sustained by an
employee of a subcontractor when the employee fell from the top of a
wall. Among the issues to be determined was whether the general
contractor had retained control of the workplace so as to warrant
imposition of liability on that contractor for the accident. In
recounting the evidence of such control, the Court of Appeal stated:
"Taubman [the general contractor] maintained a crew of carpenters
whose functions included installing guardrails at [the construction
site]; and in practice, at least, provided guardrails and safety
devices. There was testimony both that it was Taubman's policy to place
guardrails around openings or edges of slabs above 10 feet in
height and that these were installed around the perimeter of
slabs where there was a dropoff, regardless of elevation. While
evidence that Taubman's carpenters installed handrails at the
point where Morehouse fell following his injury was not
admissible to prove negligence of Taubman (Evid. Code, § 1151 Evid.) it
was properly limited (Evid. Code, § 355 Evid.) and received by the
court, on the issue of control of the premises, and as to whose
duty it was under the contract to take such safety measures.
[Citation.]" (Id. at p. 555, italics added, citing Baldwin
Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565,
573 [46 Cal.Rptr. 421] [subsequent remedial conduct cannot be
considered on the issue of liability, but "is relevant and
admissible" on the issues of scope of duty and the possibility or
feasibility of eliminating the cause of the accident]; see also
Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 796 [182 Cal.Rptr. 855]
[section 1151 Evid. inapplicable, "[f]or if the subsequent events are
offered to prove anything other than negligence or culpable conduct,
they are admissible if relevant"]; 1 Witkin, Cal. Evidence, supra,
Page 1170
Circumstantial Evidence, § 444, p. 413 ["Where evidence of
subsequent precautions or repairs is independently relevant on
some issue other than negligence, the policy objection is
overcome. . . ."].)

In the present case, evidence establishing that defendants
constructed the fence after plaintiff was injured would not be
admissible at trial to prove that defendants were negligent, but
would be admissible to demonstrate that defendants exercised
control over the premises. Accordingly, we may consider such
evidence in determining whether a triable issue of material fact
existed concerning whether defendants exercised control over the
strip of land and thus owed a duty of care to plaintiff.

Defendants did not own the narrow strip of land on which
plaintiff was injured, but plaintiff has presented evidence
suggesting that defendants treated a portion of this strip of
land as if they did own it, maintaining a lawn that spanned the
property line and that rendered part of the land owned by the
city indistinguishable from that owned by defendants, and
(subsequent to plaintiff's injury) demonstrated their possession
of this land by constructing a fence enclosing the narrow strip
containing the meter box. Standing alone, simply mowing a portion
of a lawn belonging to a neighbor may not constitute an exercise
of control over the property so as to give rise to a duty to
protect or warn persons entering the property of known dangers.
But the evidence offered in the present case goes farther and is
sufficient to raise a triable issue of fact as to whether
defendants exercised control over the strip of land containing
the meter box and thus owed a duty of care to protect or warn
plaintiff of the allegedly dangerous condition of the
property.[fn6]

III

(1d) As should be apparent, we decide only that, based upon
the circumstances of the present case, plaintiff has raised a
triable issue of fact whether defendants exercised control over
the strip of land owned by the city so as to
Page 1171
give rise to a duty to protect or warn persons entering the land.
It will be for the trier of fact to decide, based upon the
evidence received at trial, whether defendants actually exercised
such control. We express no opinion as to other issues that will
arise, in the event the trier of fact finds that such control was
exercised by defendants — including whether defendants breached
that duty of care and to what extent, if any, plaintiff's
injuries were caused by his sole or comparative negligence.[fn7]
Finally, we express no opinion regarding defendants' right to
full or partial indemnity from the city.

The judgment of the Court of Appeal is affirmed.

Mosk, J., Werdegar, J., and Chin, J., concurred.

[fn1] Defendants objected to Gray's declaration on several
grounds, and the superior court sustained the objection.
Plaintiff argued on appeal that this evidentiary ruling was
incorrect. The Court of Appeal did not expressly rule on this
issue in its opinion reversing the summary judgment, but included
in its statement of facts a quotation from the Gray declaration.
Later in its opinion, the Court of Appeal concluded that the Gray
declaration was insufficient to raise a triable issue of fact
concerning ownership of the land upon which the meter box is
located. On review before this court, neither party has briefed
the issue of the admissibility of this evidence, and plaintiff
does not challenge the Court of Appeal's conclusion that the Gray
declaration was insufficient to raise a triable issue of fact
concerning ownership of the land upon which the meter box is
located. Accordingly, we express no view regarding the
correctness of the superior court's and the Court of Appeal's
rulings on these issues.

[fn2] Of course, the liability of a possessor of land no longer
depends upon the "rigid common law classifications" of
trespasser, licensee, and invitee. (Rowland v. Christian,
supra, 69 Cal.2d 108, 118.) Instead, we "approach the issue of
the duty of the occupier on the basis of ordinary principles of
negligence. [Citations.]" (Ibid.)

[fn3] In her dissent, Justice Kennard asserts that a defendant
who exercises control over land may be liable for injuries caused
by a dangerous condition on the property only if the defendant
had the right to control the property. (Dis. opn. of Kennard,
J., post, at pp. 1176-1178.) But Justice Kennard cites no case,
and we are aware of none, in which a defendant who exercised
control over property was held not liable for injuries caused by
a dangerous condition of such property simply because the
defendant had no right to control the property. It would be
anomalous to conclude that a person who wrongfully takes
possession of land owned by another, exercising control over that
land, cannot be held liable for injuries caused by a dangerous
condition of the property.

In her dissent, Justice Kennard asserts that the comment to
section 328E of the Restatement Second of Torts, cited above,
applies only to persons in the process of gaining ownership of
land through adverse possession. (Dis. opn. of Kennard, J.,
post, at p. 1181.) The comment, while offering such circumstances as
one example of possession that is not rightful, does not limit the
application of the general principles stated in the comment to such
circumstances.

Justice Kennard's interpretation of section 328E of the
Restatement Second of Torts suggests that liability may flow from
a wrongful exercise of control over property if such conduct
constitutes adverse possession that ultimately will ripen into
ownership. (Dis. opn. of Kennard, J., post, at p. 1182.) But
this means that the potential liability of an adverse possessor
of land depends upon whether that person has satisfied all of the
prerequisites for obtaining title, such as paying taxes on the
property. (Code Civ. Proc., § 325 Civ. Proc.) It is difficult to discern
why the payment or nonpayment of taxes should affect the
liability of a possessor of land for injuries caused by a
dangerous condition of the property.

[fn4] In her dissent, Justice Kennard maintains that our holding
that there exists a triable issue of fact — as to whether
defendants exercised control over the land — is inconsistent with
the rule that the existence of a duty is a question of law. (Dis.
opn. of Kennard, J., post, at p. 1183.) We agree that "the
existence and scope of a defendant's duty of care is a legal
question" for the court to decide (Knight v. Jewett (1992)
3 Cal.4th 296, 313 [11 Cal.Rptr.2d 2, 834 P.2d 696], italics in
original), and we have applied that principle by reaffirming the
established rule that a person who exercises control over
property owes a duty of care to persons injured by a dangerous
condition on that property. The determination of this issue,
however, does not eliminate the role of the trier of fact. "In an
action for negligence the plaintiff has the burden of proving [¶]
(a) facts which give rise to a legal duty on the part of the
defendant. . . ." (Rest.2d Torts, § 328A, p. 149; O'Keefe v.
South End Rowing Club (1966) 64 Cal.2d 729, 749 [51 Cal.Rptr. 534,
414 P.2d 830, 16 A.L.R.3d 1]; cf. Ramirez v. Plough,
Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 25
A.L.R.5th 899].) Where a triable issue of fact exists, it is the
function of the jury to determine the facts. (Rest.2d Torts, § 328C,
subd. (a), p. 154.) We simply hold that a trier of fact could find on
the record before us that defendants exercised control over the
property on which the meter box was located.

[fn5] Were a "commercial benefit" requirement to exist, its
application to the present case would require the resolution of
questions including whether residential income property, like
that here involved, is a business within the meaning of the rule,
and whether the benefit conferred by a water meter (see Justice
Mosk's concurring opinion, post) constitutes a "commercial
benefit."

[fn6] Having concluded that it was improper for the trial court
to grant summary judgment in favor of defendants, because a
triable issue of fact exists as to whether defendants controlled
the property on which the allegedly defective meter box was
located, we have no occasion to consider the circumstances, if
any, under which a possessor of land may owe a duty to persons
using its property to warn them of, or protect them from, hazards
on adjacent property that is not owned, possessed, or
controlled by the defendant. (See, e.g., Southland Corp. v.
Superior Court (1988) 203 Cal.App.3d 656 [250 Cal.Rptr. 57];
Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715,
720 [246 Cal.Rptr. 199]; Stedman v. Spiros (1959) 23 Ill. App.2d 69
[161 N.E.2d 590, 597] [In holding that a hotel operator was not
liable for injuries sustained by a guest who fell over a precipice in
a state park approximately 50 feet from the hotel property, the court
observed: "Clearly, if the brink of the precipice were a step or two
from the defendant's door . . ., we would have a different case than
is now presented to us."].)

[fn7] Justice Brown's dissent concludes that defendants "did
nothing . . . negligent." (Dis. opn. of Brown, J., post, at p.
1198.) As noted above, the issue whether defendants were
negligent is not before us, and we express no opinion on that
issue.

MOSK, J.

I concur in the judgment and generally with the majority's
reasoning. Contrary to the dissents' criticisms, today's decision
merely applies settled principles of California law. In that
respect, I write separately to explain that a body of law
imposing liability for failing to maintain appurtenances to land
also favors plaintiff. The principles involved ordinarily appear
in tort cases involving appurtenances embedded in sidewalks to
benefit adjoining property.

Before discussing the law of appurtenances, however, I explain
the basis on which I join the majority opinion. First, although
the scope of defendants' duty to keep the premises in a
reasonably safe condition is a legal question for the court (Ann
M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674
[25 Cal.Rptr.2d 137, 863 P.2d 207]), the trier of fact is to
decide whether a breach of that duty caused plaintiff's alleged
injuries (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617,
633 [4 Cal.Rptr.2d 145, 822 P.2d 1292]). Nothing in our
majority opinion should be interpreted otherwise.

Second, as the majority explain, possession and control govern
the scope of that duty. "`[T]he right of supervision and control
"goes to the very heart of the ascription of tortious
responsibility. . . ."'" (Preston v. Goldman (1986) 42 Cal.3d 108,
119 [227 Cal.Rptr. 817, 720 P.2d 476].)

Whether or not the land containing the meter box was city
owned, plaintiff offered enough evidence of defendants' control
of the premises to raise a triable factual question regarding
their liability for his injury. He produced evidence that
defendants hired someone to mow the lawn. He also produced
Page 1172
evidence that defendants put up a picket fence after the
accident. This evidence was admissible to show control.
(Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555
[85 Cal.Rptr. 308]; cf. Evid. Code, § 1151 Evid. [evidence of later
remedial measures inadmissible to show earlier negligence or
culpable conduct].) Finally, plaintiff produced evidence that an
erstwhile neighbor or tenant warned defendant Peter Vece several
times about the missing meter box cover. This state of the
evidence requires that a trier of fact decide defendants'
liability.

But even if the foregoing evidence were absent, the evidence
that defendants neglected to maintain an appurtenance placed on
adjoining land for their benefit would suffice to defeat the
summary judgment motion. "`The moving party bears the burden of
furnishing supporting documents that establish that the claims of
the adverse party are entirely without merit on any legal
theory.'" (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35
[210 Cal.Rptr. 762, 694 P.2d 1134].)

As alluded to, the question of the duty to maintain an
appurtenance ordinarily arises in cases involving traps on
sidewalks. At common law an adjoining landowner owed no duty to
members of the public to protect against defects in public
sidewalks. (Winston v. Hansell (1958) 160 Cal.App.2d 570,
572 [325 P.2d 569, 88 A.L.R.2d 326].) Streets and Highways Code
section 5610 Sts. & High. creates a duty to maintain a sidewalk, but that
duty does not extend to members of the public. (Williams v. Foster
(1989) 216 Cal.App.3d 510, 521 [265 Cal.Rptr. 15].) Therefore
it appears that the common law rule still applies. (Id. at pp.
515, 521.) But an adjoining landowner nonetheless may be liable
"for defects created by special construction for the particular
needs of the abutting property." (Winston v. Hansell, supra,
160 Cal.App.2d at p. 575.) As we have explained, "an abutting
landowner may be held liable for the dangerous condition of
portions of the public sidewalk which have been altered or
constructed for the benefit of his property and which serve a use
independent of and apart from the ordinary and accustomed use for
which sidewalks are designed." (Peters v. City & County of San
Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55], reaffirmed in
City & County of S.F. v. Ho Sing (1958) 51 Cal.2d 127, 129
[330 P.2d 802].) The adjoining landowner and the city are jointly
and severally liable for injury resulting from such a dangerous
condition. (51 Cal.2d at p. 130.)

Potential traps giving rise to such liability include "coal
holes, meter boxes, and other devices of similar character
located in the sidewalk which benefit the abutting owner and are
located where the general public is likely to walk. In those
cases, it becomes the liability of the abutting owner to keep
Page 1173
such devices in good repair." (Steen v. Grenz (1975) 167 Mont. 279
[538 P.2d 16, 18]; see also Annot., Liability of Abutting Owner or
Occupant for Condition of Sidewalk (1963) 88 A.L.R.2d 331, 399.)

Liability is imposed because emplacements of this type are
appurtenances for the benefit of the possessor and controller of
adjoining land. (Hamelin v. Foulkes (1930) 105 Cal.App. 458,
462-463 [287 P. 526].) Hamelin is virtually on all fours with
this case. In Hamelin, the plaintiff stepped out of an
automobile and into a hole created by the defendants' "failure to
maintain a proper covering upon the sidewalk hydrant box in front
of [their] store. . . . The hydrant boxes were cut in the
concrete near the curb and were approximately ten inches square."
(Id. at p. 461.) Hamelin found liability because "the hydrant
box was solely for the use of appellants' store and was connected
with appellants' meter, [and] the lease of the store and basement
to appellants passed with it the possession and control of the
hydrant box as an appurtenance thereto." (Id. at p. 462.)

Hippodrome Amusement Co. v. Carius (1917) 175 Ky. 783
[195 S.W. 113] also found liability on this basis in a case involving
a water service box. "[I]f the unsafe condition of the sidewalk .
. . arises from an extraordinary use permitted him [the adjoining
landowner] in the use of the sidewalk for purposes of his own,
and . . . the sidewalk is burdened with a servitude for his
benefit or that of his property, and he appropriates the use of
the contrivance which constitutes the servitude, he is jointly
and severally liable . . . with the city for the injuries
sustained by individuals on account of the unsafe condition of
the sidewalk." (195 S.W. at p. 115.) This is so even if it is the
city's duty "to look after and keep in repair the water service
boxes throughout the city." (Ibid.)

The foregoing cases illustrate the principle that "ordinarily
an easement or dominant tenement owner has the duty to maintain
and repair the easement and the servient tenement owner is under
no duty to do so." (Williams v. Foster, supra, 216 Cal.App. 3d
at p. 522, fn. 9.) Concomitant with that duty is the right
to repair. (Ward v. City of Monrovia (1940) 16 Cal.2d 815,
821-822 [108 P.2d 425]; Scruby v. Vintage Grapevine, Inc.
(1995) 37 Cal.App.4th 697, 706-707 [43 Cal.Rptr.2d 810]; City
of Gilroy v. Kell (1924) 67 Cal.App. 734, 743 [228 P. 400]
[easement by prescription].) Thus, the point made in dissent — in
essence that there is no evidence sufficient to create a triable
issue whether defendants could repair the meter box — is
erroneous. Plaintiff produced evidence that, if accepted by the
trier of fact, would establish defendants' right to do so.

Naturally, the reason to hold responsible for pedestrians'
injuries those adjoining landowners who modify sidewalks for
their own use is that
Page 1174
sidewalks are common thoroughfares, and the presence of passersby
is foreseeable. This case differs from Hamelin v. Foulkes,
supra, 105 Cal.App. 458, in that the evidence showed the meter
box was on a "well kept lawn" a few inches from the sidewalk.
Presumably the lawn was not a common thoroughfare for members of
the general public. But plaintiff was not a mere passerby who
might be thought unlikely to tread on the lawn: he was
defendants' tenant whose use of the lawn the trier of fact could
find foreseeable — i.e., he was walking where he was "likely to
walk." (Steen v. Grenz, supra, 538 P.2d at p. 18.)

The summary judgment motion should have been denied because of
evidence that defendants controlled the whole lawn, including any
part the city may have owned. In the alternative, the motion
should have been denied because of evidence that defendants
benefitted from a servitude in the form of a meter box on
adjoining land on which it was foreseeable that plaintiff might
walk. (Hamelin v. Foulkes, supra, 105 Cal.App. 458; see Civ.
Code, § 801 Civ., subd. 6; see also Wright v. Best (1942)
19 Cal.2d 368, 382 [121 P.2d 702] [Civil Code section 801 Civ. does not
enumerate all possible servitudes].)

KENNARD, J., Dissenting.

Does a landowner who has no possessory interest in adjoining
premises containing a dangerous condition, who has no legal right
to control either the premises or the dangerous condition, and
who did nothing to create or aggravate the danger have a duty to
protect others from the danger? Before today the answer under
California law would be "No." The majority, however, holds that
persons who lack the right to control either the dangerous
condition or the land on which it is located, and who have done
nothing to create or increase the danger, have such a duty merely
because they have conducted some unrelated activity on the
neighboring land. Because the majority imposes the duty based on
innocuous or good-neighborly conduct that does not contribute to
the danger and therefore carries no moral blame, its expansion of
tort liability runs counter to traditional notions of tort law.

I

On the night of April 17, 1990, plaintiff Gilardo C. <Alcaraz>
walked from the public sidewalk onto a narrow strip of land
located in front of the rental property where he had lived for 22
years, stepped on a broken water meter box, and was injured. Both
the narrow strip of land and its water meter box belonged to the
City of Redwood City (hereafter City). <Alcaraz> sued his
Page 1175
landlord, Peter Vece, seeking damages under a theory of premises
liability.[fn1] The complaint alleged that the meter box was
located on property owned by Vece at 141-147 Lincoln Avenue in
the City, and that therefore Vece was legally responsible for its
defective condition, which was the proximate cause of <Alcaraz>'s
injuries.[fn2]

Vece moved for summary judgment. He presented undisputed
evidence that the City owned the strip of land containing the
water meter box and maintained the box.

In opposition, <Alcaraz> argued that even if Vece did not own the
water meter box or the land on which it was situated, Vece
nonetheless had a duty to repair the broken meter box or to warn
<Alcaraz> about its condition in light of Vece's control over the
City-owned land. As indicia of such control, <Alcaraz> pointed to
(1) the periodic mowing, by Vece's gardener, of the two-foot-wide
strip of grass-covered land that was owned by the City and
contained the City's meter box; and (2) Vece's construction,
after the accident, of a picket fence that separated the lawn
area from the public sidewalk and enclosed both Vece's land and
the City's.

The trial court entered summary judgment for Vece.

II

The majority holds that summary judgment should not have been
granted because "a triable issue of fact exists" whether Vece
"exercised control over the property surrounding the meter box
and thus had a duty to protect plaintiff from, or warn him of,
the hazardous condition of the meter box." (Maj. opn., ante, at
p. 1161.) According to the majority, a jury could well decide
that control sufficient to impose on Vece a duty to protect
others from or warn them about the hazardous condition of the
meter box could be established by evidence that Vece's gardener
had been mowing the grass on the two-foot-wide strip of land
owned by the City and containing the City's meter box, together
with evidence that after the accident Vece built a picket fence
around the grassy area in front of his rental property, enclosing
both his land and the City's narrow strip of land. (Id. at p.
1170.)

The majority's holding finds no support in California case law,
which until now has imposed a duty to protect others from
dangerous conditions on
Page 1176
land only upon those persons who (1) have the legal right to
control either the premises containing the dangerous instrumentality
or the dangerous instrumentality itself, or (2) created or aggravated
the hazard on the land.

The general rule of premises liability is set forth in this
court's decision in Sprecher v. Adamson Companies (1981)
30 Cal.3d 358, 368 [178 Cal.Rptr. 783, 636 P.2d 1121], which states
that a landowner has a "duty to take affirmative action for the
protection of individuals coming upon the land." This duty arises
because ownership of land includes the "right to control and
manage the premises." (Ibid., italics added.) The landowner's
"mere possession with its attendant right to control conditions
on the premises is a sufficient basis for the imposition of an
affirmative duty to act." (Id. at p. 370, italics added.) The
right to control the premises lies at "`the very heart of the
ascription of tortious responsibility'" in premises liability
actions. (Id. at p. 369, quoting Connor v. Great Western
Savings & Loan Assn. (1968) 69 Cal.2d 850, 874 [73 Cal.Rptr. 369,
447 P.2d 609, 39 A.L.R.3d 224] (dis. opn. of Mosk, J.);
accord, Preston v. Goldman (1986) 42 Cal.3d 108, 118-119
[227 Cal.Rptr. 817, 720 P.2d 476].)

The "right to control" gains special significance when more
than one individual has a legal interest in land containing a
dangerous condition, because it provides a means of ascertaining
who has the duty to warn or protect others from that condition.
(See Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831
[87 Cal.Rptr. 173] [noting that "the aggregation of powers
called ownership" can be divided and the "various kinds of
control [can be] held in separate hands"].) In that situation,
the existence of duty depends upon whether a particular interest
includes the right to control that part of the premises
containing the dangerous condition. (Uccello v. Laudenslayer
(1975) 44 Cal.App.3d 504, 511 [118 Cal.Rptr. 741, 81 A.L.R.3d
628]; see Johnston v. De La Guerra Properties, Inc. (1946)
28 Cal.2d 394, 399-401 [170 P.2d 5].)

For example, although the interests of a landlord and a tenant
in property leased by the tenant overlap to some extent, the
tenant has a present interest in the premises while the landlord
has only a future reversionary interest. Therefore, the
landlord's relinquishment of the rental premises to a tenant
generally imposes on the tenant, not the landlord, the duty to
protect others from dangerous conditions on those premises.
(Uccello v. Laudenslayer, supra, 44 Cal.App.3d at pp.
510-511; Prosser & Keeton, Law of Torts (5th ed. 1984) § 63, p.
434 ["In the absence of agreement to the contrary, the lessor
surrenders both possession and control of the land to the lessee.
. . ."]; see Rowland v. Christian (1968) 69 Cal.2d 108,
119-120 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]
[residential tenant liable for
Page 1177
dangerous condition within area of leasehold].) But when the
landlord retains the right to control certain parts of rental
premises (typically common areas), the law imposes on the
landlord the duty to use ordinary care to eliminate dangerous
conditions in the areas of retained control. (Johnston v. De
La Guerra Properties, Inc., supra, 28 Cal.2d 394, 399; Uccello
v. Laudenslayer, supra, at p. 511.)

In Johnston v. De La Guerra Properties, Inc., supra,
28 Cal.2d 394, this court upheld a jury verdict imposing damages on
both a commercial landlord and its tenant for injuries to a
patron of the tenant's restaurant who was injured in a common
area of the premises, namely, a walkway leading to the
restaurant's back door. This court held the landlord liable,
applying the principle that a landlord who retains the right to
control common areas has a duty for injuries occurring in such
areas. (Id. at pp. 399-400.) But the tenant was also held
liable, because it had a "limited right of control" over the same
common area, as evidenced by its installation of a neon sign at
the rear entrance beckoning patrons to use the walkway to enter
the restaurant. (Id. at p. 401.)

In some situations, the right to control premises containing a
hazardous condition or instrumentality may be found in someone
who has no ownership or leasehold interest in the premises. For
instance, a landowner may grant that right to an independent
contractor or licensee. (See Morehouse v. Taubman Co. (1970)
5 Cal.App.3d 548 [85 Cal.Rptr. 308].) In such a case, the
contractor or licensee would have a duty to protect those coming
onto the land from a dangerous condition or instrumentality on
the land because of the contract- or license-based right to
control those premises.

In other situations, an individual's "right to control" may
extend only to the dangerous condition or instrumentality itself
and include no other portion of the premises, and yet the
individual would have a duty to protect or warn others of the
hazard because the right to control the dangerous condition
carries with it "a concomitant right and power to obviate the
condition and prevent the injury." (Uccello v. Laudenslayer,
supra, 44 Cal.App.3d at p. 511; accord, Connor v. Great
Western Savings & Loan Assn., supra, 69 Cal.2d 850, 874 (dis.
opn. of Mosk, J.) [the right to control the "agency of harm"
gives rise to a duty to protect others from the harm].)

As I have just explained, the right to control land or
dangerous conditions on the land may exist separately from any
property interest. California courts, in determining whether a
duty of care exists in premises liability actions, have therefore
treated a possessory interest in property with its attendant
right to control the property as a concept separate from the
right of
Page 1178
control over property that is not grounded in any possessory
interest, and they have occasionally used the shorthand term
"control" to denote what is more correctly described as the
"right to control." (See generally, Isaacs v. Huntington
Memorial Hospital (1985) 38 Cal.3d 112, 134 [211 Cal.Rptr. 356,
695 P.2d 653] ["A defendant cannot be held liable for the
defective or dangerous condition of property which it did not
own, possess, or control." (Italics added.)]; Gray v.
America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81
[256 Cal.Rptr. 877] ["In premises liability cases, summary judgment
may properly be granted where a defendant unequivocally
establishes its lack of ownership, possession, or control of
the property alleged to be in a dangerous or defective
condition." (Italics added.)].) These cases do not suggest, as
the majority would have it, that a person who has no possessory
interest in adjoining land or who lacks the legal right to
control the land or the hazardous condition on it assumes a duty
to protect others against or warn them of the danger on the land,
simply because of some innocuous activity that the individual
performed on the neighboring land.

Rather, the general rule to be drawn from California case law
is that, in premises liability actions, those who have a right
to control either the premises containing a dangerous condition
or the dangerous condition itself have a duty to correct the
hazard or to warn others of it. The converse, of course, is also
true. Absent the right to control either the premises or the
dangerous condition, there generally is no duty to correct or to
warn. (See Gillespie v. City of Los Angeles (1950) 36 Cal.2d 553,
556 [225 P.2d 522] [City of Los Angeles had no duty to post
signs warning motorists of a hairpin curve on Topanga Canyon
Road, and hence no liability for failing to do so, because it was
a state highway over which the city had no legal authority].)

One exception to this general rule is when a person's conduct
or activity on another's land causes or increases the risk from a
hazardous condition on that land. In that situation, California
courts have not hesitated to subject the person to liability.
Thus, in Kopfinger v. Grand Central Pub. Market (1964)
60 Cal.2d 852, 859 [37 Cal.Rptr. 65, 389 P.2d 529], the operator of
a butcher shop located in a large public market hall was held
liable to a customer who slipped and fell on a small piece of
meat dropped on the sidewalk outside the market during meat
delivery. The defendant butcher shop's use of the sidewalk for
commercial purposes in the course of which the hazard was created
was held to give rise to a duty by the butcher shop to discover
and remove the hazard. (Ibid.) Similarly, in Schwartz v.
Helms Bakery Limited (1967) 67 Cal.2d 232, 235-239
[60 Cal.Rptr. 510, 430 P.2d 68], a bakery was held liable for injuries to
a small boy who was hit by a car as he ran across the road to
catch up with the bakery truck after its driver had agreed
Page 1179
to wait for the child to go home and to return with money to buy
an item from the truck. A duty to protect others from harm arises
in cases such as these because the defendant either created the
dangerous condition on someone else's property (as in
Kopfinger), or by some affirmative conduct aggravated the
danger to the plaintiff (as in Schwartz).

In contrast, when, as here, a defendant's conduct on another's
land does not create or aggravate a dangerous condition on that
land, California law imposes no duty on the defendant to protect
others from the hazard. Thus, in Hamilton v. Gage Bowl, Inc.
(1992) 6 Cal.App.4th 1706, 1712-1713 [8 Cal.Rptr.2d 819], the
owner of a bowling alley and adjoining parking lot in which a
bowling alley patron was injured when a sign fell off an adjacent
building was held not to have a duty to protect the patron from
the danger of the falling sign. The court noted that the owner of
the bowling alley did not own either the building or the sign;
therefore, the owner lacked the right to control the danger posed
by the sign. It was considered irrelevant to the issue of duty
that the bowling alley owner had painted the wall on the adjacent
property and maintained his own advertisement on it (thus,
arguably, under the view of the majority here, exercising
"control" over the neighboring property containing the dangerous
condition). As the court in Donnell v. California Western
School of Law (1988) 200 Cal.App.3d 715, 720 [246 Cal.Rptr. 199],
aptly stated: "The law of premises liability does not
extend so far as to hold [a defendant] liable merely because its
property exists next to adjoining dangerous property and it took
no action to influence or affect the [harmful] condition of such
adjoining property."

In summary, under California law persons who have the right to
control premises containing a dangerous condition, or who have
the right to control the dangerous condition itself, or whose
conduct caused or contributed to the hazard have a duty to
protect others from the hazard. Therefore, contrary to the
majority's holding, our law does not impose a duty on a landowner
to correct or warn of a dangerous condition on neighboring land
when the landowner has no right to control that property, and did
not create or aggravate the hazardous condition.

Undaunted, the majority seeks, without avail, to justify its
holding by relying on two federal appeals court decisions,
Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944 [191
App.D.C. 242] and Orthmann v. Apple River Campground, Inc.
(7th Cir. 1985) 757 F.2d 909, and on section 328E of the
Restatement Second of Torts.

The same two reasons that the California cases I discussed
earlier have articulated in imposing a duty to protect —
affirmative conduct creating a
Page 1180
hazard and a right to control the premises containing the hazard,
a right that arises from a possessory interest or an agreement
with one holding the possessory interest — underlie Husovsky v.
United States, supra, 590 F.2d 944. That case imposed on the
United States Government a duty of care to a motorist who was
injured when a tree located on land belonging to the Government
of India fell on his car. The land had been left in its natural
state pursuant to a written agreement that the United States had
negotiated with India 20 years before the accident. Therefore,
the United States had in effect created the hazardous condition.
In addition, the court found the existence of a "unique
relationship . . . between the United States and the tract of
land" containing the tree in question, based on certain acts by
the United States Government indicating the right of control and
supervision over the land owned by India. (Id. at p. 592.)
These acts included "[t]he initial and subsequent surveys of the
land, the agreement with India concerning the use to which it
could be put, placement and maintenance by the Park Service of
monuments and stakes with United States insignia. . . ." (id.
at p. 593, fn. omitted) and "[t]he presence for over twenty years
of permanent granite markers bearing the United States' insignia
indicat[ing] that the Indian Government did not contest the
indicia of federal control over the tract." (Id. at p. 953, fn.
20.)

Similarly misplaced is the majority's reliance on Orthmann v.
Apple River Campground, Inc., supra, 757 F.2d 909 (hereafter
Orthmann). In that case, the plaintiff sued certain businesses
located on the Apple River for injuries he sustained when diving
into the river. The businesses were engaged in a joint venture,
the Floater's Association, that rented out inner tubes for
floating down a four-mile stretch of the river; members of the
association owned most of the land on both sides of that stretch
of the river. The plaintiff rented an inner tube, but interrupted
his floating to go ashore at a spot belonging not to the
association but to the Montbriand family. A tree on the property
that grew out over the river was a popular location for diving.
When the plaintiff arrived at the tree, several others were
waiting to dive from it, so the plaintiff dived from the
riverbank instead and was injured. (Id. at pp. 910-912.)

To decide whether the plaintiff's complaint stated a negligence
claim under Wisconsin law, the federal appeals court in
Orthmann first posited that the Floater's Association, by
advertising its inner tube rental to potential customers, had
issued an implied invitation for persons renting inner tubes "to
use the tree and surrounding land for diving into the river."
(Orthmann, supra, 757 F.2d at p. 913.) The court reasoned that
under these circumstances the association would be "prima facie
liable" if it owned the land where the diving took place.
(Ibid.) The plaintiff's complaint, the court
Page 1181
concluded, was sufficient to satisfy the liberal federal pleading
requirements based on statements in a supporting affidavit that,
after the accident, an association member had gone onto the
riverbank of the Montbriand property without permission and cut
down the tree. The federal court held that even though the
defendants did not own the part of the riverbank from which the
plaintiff dived into the river, it was possible to infer from the
tree-cutting activity that they had "treated it as if they did."
(Ibid.)

Therefore, under Orthmann, a duty of care arises only when a
landowner either creates a dangerous condition on neighboring
land or encourages a particular use of that land resulting in the
plaintiff's injury. (Orthmann, supra, 757 F.2d at pp. 913
[discussing the association's encouragement of diving as part of
the basis for imposing a duty of care on its members], 914
[giving two examples of when treatment of neighboring land as
one's own could give rise to liability, one involving the
landowner's creation of a dangerous pothole on adjoining land
and the other in which the landowner encouraged a particular
use of adjoining land that exposed the plaintiff to the
dangerous condition].) Here, Vece neither created the hazard
posed by the City's broken water meter box nor encouraged a
particular use of the City's land leading to plaintiff's
injuries.

According to the majority, "[i]t would be anomalous to conclude
that a person who wrongfully takes possession of land owned by
another, exercising control over that land, cannot be held liable
for injuries caused by a dangerous condition of the property."
(Maj. opn., ante, at p. 1159, fn. 3.) The majority equates
"exercising control" over adjoining land with "possession" of
land. In support, the majority cites to Restatement Second of
Torts section 328E, which defines the term "possessor of land" to
include "a person who is in occupation of land with intent to
control it" and to section 328E's comment a, which states that
"[t]he important thing in the law of torts is the possession, and
not whether it is or is not rightful as between the possessor and
some third person." (See maj. opn., ante, at p. 1159.) Upon
close examination, however, section 328E and comment a have no
application here. Ignored by the majority is the next sentence to
comment a explaining that under section 328E, a person who
occupies land with intent to control it can be a possessor with a
duty to protect others coming upon the land only if that person
is a "disseisor," that is, someone in the process of gaining
ownership of another's land through the legal doctrine of adverse
possession. (Rest.2d Torts, § 328E, com. a, p. 171 ["Thus a
disseisor is a possessor from the moment that his occupation
begins, although as between the disseisor and the true owner he
is not legally entitled to possession until his adverse
possession has ripened through lapse of time into ownership."];
and
Page 1182
see 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, §
93, p. 318 [explaining how title is gained through
"disseizen"].)[fn3]

In order to occupy another's land with the intent to control it
for purposes of gaining title through adverse possession, a
person must exercise dominion over the property in such a way as
to put the true owner on notice that the person claims a right,
title and interest in the land. (4 Witkin, Summary of Cal. Law,
supra, Real Property, § 96, p. 320; id., § 104, pp. 323-324.)
The claim of right must be "hostile" to the possessory rights of
the true owner. Therefore, "[i]f the owner permits the person to
use the land, the possession is not adverse." (Id., § 97, p.
321.) Furthermore, the hostile occupancy under a claim of right
must continue uninterrupted for a full five-year period (Code
Civ. Proc. §§ 318 Civ. Proc., 319, 325; 4 Witkin, supra, Real Property, §
108, p. 328), during which time the disseisor must have paid all
taxes levied or assessed on the property (Code Civ. Proc., § 325 Civ. Proc.;
4 Witkin, supra, Real Property, § 110, p. 330). Understood in
light of these substantial preconditions for gaining title to
land through adverse possession (none of which is satisfied in
this case), section 328E of the Restatement Second of Torts does
not support the majority's expansive and unprecedented holding
that when, as here, a landowner performs innocuous or
good-neighborly activity on neighboring property, he or she may
be said to "exercise control" over that land, thus warranting
imposition of a duty to protect or to warn others of dangers on
that land.[fn4]

In its eagerness to impose liability where none existed before,
the majority does not even bother to consider the test this court
articulated in Rowland v. Christian, supra, 69 Cal.2d 108,
113, in determining the existence of duty. Pertinent are such
considerations as the closeness of the connection between
Page 1183
the plaintiff's injury and the defendant's conduct, the moral
blame attached to the defendant's conduct, advancement of the
public policy of deterring or preventing future harm, the extent
of the burden to the defendant and the consequences to the
community in imposing a duty to exercise care and subjecting the
defendant to liability for breach of the duty, and the
availability of insurance. These factors weigh against the
majority's imposition of a duty of care here, as I explain below.

When, as here, a plaintiff suffers injury from a dangerous
condition on land over which the defendant has no right of
control, and the defendant's innocuous or good-neighborly
activity on that land neither created nor aggravated the hazard,
there is no nexus between the plaintiff's injury and the conduct
of the defendant. Therefore, the defendant bears no moral blame.
Nor would imposition of liability in this circumstance advance
society's interests in punishing wrongdoers and in preventing
future harm; instead, it would discourage individuals from
undertaking socially beneficial actions on neighboring property
or turn those who do so into guarantors of the safety of others
coming onto the adjoining property. Furthermore, persons lacking
any lawful interest in the premises containing a hazardous
condition have no insurable interest in those premises.
Accordingly, consideration of the various factors set forth in
Rowland v. Christian, supra, 69 Cal.2d 108, 113, do not
support the creation of a duty of care in this case.[fn5]

III

The majority's holding suffers from yet another serious flaw.
The majority leaves it to the jury, on a case-by-case basis, to
decide as "a triable issue of fact" the issue of when a landowner
has "exercised control" over adjoining property so as to give
rise to a duty of care. (Maj. opn., ante, at p. 1153.) But the
majority never explains what it means to "exercise control" over
adjoining premises. Pity the poor trial judge who after today's
decision will have to fashion a jury instruction on this point.

Furthermore, the majority claims that leaving this decision for
the jury is entirely consistent with the rule that the existence
of duty is a question of
Page 1184
law to be decided by a court. (Maj. opn., ante, at p. 1162, fn.
4; see generally, Knight v. Jewett (1992) 3 Cal.4th 296, 313
[11 Cal.Rptr.2d 2, 834 P.2d 696]; Ballard v. Uribe (1986)
41 Cal.3d 564, 572, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624]; see
also Kentucky Fried Chicken of Cal., Inc. v. Superior Court
(1997) 14 Cal.4th 814, 832 [59 Cal.Rptr.2d 756, 927 P.2d 1260]
(dis. opn. of Kennard, J.) ["Whether a defendant has a duty to
use reasonable care to avoid harm to the plaintiff is decided as
a matter of law. . . ."].) But it is not. When facts are not in
dispute, deciding whether those facts give rise to a legal duty
is a question for the court rather than the jury. (Rest.2d Torts,
§ 328B, subd. (b), p. 151; id., com. e, p. 153; Prosser &
Keeton, Law of Torts, supra, § 37, at p. 236 ["whether, upon
the facts in evidence, such a relation exists between the parties
that the community will impose a legal obligation upon one for
the benefit of the other . . . . is entirely a question of law .
. . [to] be determined only by the court"]; Mozingo by Thomas
v. Memorial Hosp. (1991) 101 N.C. App. 578 [400 S.E.2d 747,
753] ["When there is no dispute as to the facts . . . the issue
of whether a duty exists is a question of law for the court."];
Gabrielson v. Warnemunde (Minn. 1989) 443 N.W.2d 540, 543,
fn. 1 [88 A.L.R.4th 237] ["It is not . . . the jury's function to
determine whether the facts give rise to a duty. Rather, the
jury's role is to resolve disputed facts, upon which the court
then determines whether a duty of care exists."].) Here, there is
no dispute that Vece's gardener periodically mowed the grass on
the City's two-foot-wide strip of land containing the City's
water meter, and that Vece, after the accident, built a picket
fence that enclosed both his land and the City's, separating the
entire lawn from the public sidewalk.

The majority denies that "the simple act of mowing a lawn on
adjacent property (or otherwise performing minimal, neighborly
maintenance of property owned by another) generally will,
standing alone, constitute an exercise of control over property
and give rise to a duty to protect or warn persons entering the
property." (Maj. opn., ante, at p. 1167, italics added.) But
the majority never decides whether the occasional mowing of the
City's adjacent narrow strip of land by Vece's gardener in this
case is the type of "minimal, neighborly maintenance of property
owned by another" that will not give rise to a duty. Thus the
majority leaves open the possibility that a jury here and in
future cases may well decide that just such minimal, neighborly
acts do establish control over adjoining property sufficient to
give rise to a duty to prevent harm.

With regard to Vece's construction of a picket fence, that
action took place after the accident in this case. In the
majority's view, evidence of the fence building is relevant to
the issue of Vece's control over the City property before the
accident. Even under the rule that the majority announces today,
however, that evidence has no relevance, as I discuss below.
Page 1185

Under that rule, a landowner with no legal interest in
adjoining property has a duty to protect others from harm on that
property if the landowner has exercised "control" over that
property. Logically, that duty can come into existence only after
the defendant has begun the conduct that constitutes such
control. When, as here, the defendant after occurrence of the
harm on the neighboring property engages in some new activity on
that property, the new activity has no "tendency in reason to
prove or disprove" (Evid. Code, § 210 Evid.) that before occurrence
of the harm the defendant had engaged in conduct sufficient to
constitute control over the adjacent property.

In arriving at a contrary conclusion, the majority relies on a
decision by the Court of Appeal in Morehouse v. Taubman Co.,
supra, 5 Cal.App.3d 548. In Morehouse, a contract allocated
responsibilities at a jobsite between the general contractor and
the subcontractor. At issue was which of the two had the
contractual right of control over a specific safety requirement.
Because the question was one of contractual intent, one party's
assumption of control of that safety requirement after an
accident was held to be indicative of that party's understanding
that it had the obligation all along. Here, however, the issue is
not one of contractual or any other form of intent, but the
actual control by Vece over the City's land and the water meter
box on that land before the accident.

Even if Vece's construction of the picket fence were relevant
under the majority's test, I doubt the wisdom of a rule
permitting judicial consideration of after-the-fact conduct as a
basis for determining the existence of control before the
occurrence of the harm. Such a rule discourages a landowner who
learns of an accident involving a dangerous condition on
neighboring property from taking any remedial steps to protect
others from the hazard, because it might expose the landowner to
civil liability on the theory that his or her postaccident
conduct established control over the adjacent premises.

CONCLUSION

Unlike the majority, I would hold that a landowner who has no
possessory interest in adjoining property containing a dangerous
condition, who has no legal right to control the neighboring
premises or the dangerous condition, and whose innocuous,
good-neighborly activity on that property has neither caused nor
increased the hazard thereon, has no duty to prevent harm to
others.

Applying this approach to the undisputed evidence that Vece
offered in support of his motion for summary judgment, I conclude
that Vece had no duty to protect others against the harm posed by
the City's broken water
Page 1186
meter box on City-owned land. Vece had no legal interest in or
right to control the City's meter box located on the City land
running along the front of Vece's rental property. Furthermore,
plaintiff <Alcaraz> never alleged that Vece caused or aggravated
the danger posed by the City's broken water meter box. Therefore,
Vece established the absence of duty (an essential element of
plaintiff's case), thereby entitling him to summary judgment.
(Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 362;
Gray v. America West Airlines, Inc., supra, 209 Cal.App.3d
at p. 81.)

The majority in this case adopts an ill-conceived and
unprecedented expansion of tort liability. By untethering tort
liability from either the existence of any legal right to control
the property or conduct that creates or aggravates the harmful
condition, the majority unduly expands both the scope and
uncertainty of negligence liability. A person's innocuous or
good-neighborly acts on the land of another (for example, mowing
a lawn, planting flowers, or regularly picnicking) can now make
him or her liable to anyone coming on that land, even though
there is no causal connection between the acts and the subsequent
injury. Nor can anyone be certain just what acts on the land of
another will amount to sufficient "control" so as to lead to
liability, because all such questions will henceforth be decided
by the jury on a case-by-case basis.

Under the majority's rule, defendant Vece would have been
better off and not subject to liability if instead of mowing the
City's adjoining strip of land, he had left it in its natural
state, unkempt and a blight on the neighborhood.

I would reverse the judgment of the Court of Appeal and
reinstate the trial court's grant of summary judgment for Vece.

[fn1] <Alcaraz> did not sue the City and conceded at oral argument
that he had not preserved his right to do so because he did not
file the required claim within the statutory time. (See Gov.
Code, §§ 905 Gov't, 911.2.)

[fn2] Also named in the complaint were four additional owners of
the property at 141-147 Lincoln Avenue. For simplicity's sake, I
will refer to the property owners collectively as the landlord or
as Vece.

[fn3] The majority asserts that under comment a to section 328E,
any conduct that can be construed as an act of control can give
rise to a duty. (Maj. opn., ante, at p. 1159, fn. 3.) The
majority is wrong. Comment a gives only one illustration of a
person occupying land with the intent to control it: a person in
the process of gaining ownership through the legal doctrine of
adverse possession. Comment a thus seems directed at those who
occupy land with intent to control it for all purposes, that is,
those who exercise the degree of control required for adverse
possession. Moreover, even assuming that something less than an
ongoing effort to gain ownership through adverse possession might
qualify as occupation of another's land with the intent to
control it within the meaning of section 328E, nothing in comment
a suggests this could include innocuous or good-neighborly
activity such as a landowner's mowing of a small strip of
adjoining land, as involved here.

[fn4] This court has never adopted section 328E of the
Restatement Second of Torts as the law of California, and I can
see no reason to do so in this case. Not only are the facts here
wholly insufficient to constitute a hostile, open and notorious
occupation of the City's land under a claim of right, but the
property on which the activity took place belongs to a public
entity (the City) and therefore a disseisor may not gain title to
it by adverse possession. (Civ. Code, § 1007 Civ. [public land not
subject to adverse possession]; 4 Witkin, Summary of Cal. Law,
supra, Real Property, § 94, pp. 319-320 [same].)

[fn5] I am not persuaded by Justice Mosk's proposal that
adjoining landowners should have a duty of care with regard to
any "appurtenances" (conc. opn. of Mosk, J., ante, at p. 1173)
that provide some benefit to their property, such as "`coal
holes, meter boxes, and other devices of similar character
located in the sidewalk which benefit the abutting owner. . . .'"
(Ibid.) Like the majority, Justice Mosk fails to take into
account the policy considerations enunciated in Rowland v.
Christian, supra, 69 Cal.2d 108, 113, in determining the
existence of a duty. For reasons I have fully articulated
earlier, I cannot agree that someone who lacked the right to
control a defective appurtenance on adjoining land and who did
not create or increase the hazard should nevertheless be held
liable for the harm posed to others.

BAXTER, J.

I respectfully dissent. In doing so, I agree with many of the
criticisms leveled against the majority opinion by Justices
Kennard and Brown. As they suggest, the majority have created a
new, vague, dangerous, and unreasonable form of premises
liability against persons who merely volunteer for limited
caretaking activities on their neighbors' land. The limits of the
rule applied by the majority are not clearly articulated, and the
majority's recognition of possible liability in this case cannot
be justified under the balancing test pertinent to the existence
of a tort duty, as set forth in Rowland v. Christian (1968)
69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].

I write separately only because I am uncertain that either of
the other dissenting opinions has isolated the precise principles
which negate defendants' duty in this case. Indeed, as the
multiple opinions themselves demonstrate, the numerous
authorities governing premises liability permit differing
Page 1187
shades of interpretation. However, we need not develop a
"universal theory" on this subject in order to conclude, as a
matter of law, that the instant defendants are not liable for the
injury suffered by plaintiff Gilardo C. <Alcaraz.

It is clear that one has no affirmative responsibility for the
safety of property he or she does not "own, possess, or control."
(Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,
134 [211 Cal.Rptr. 356, 695 P.2d 653].) Rather, "the duty to
take affirmative action for the protection of individuals coming
on the land is grounded in the possession of the premises and
the attendant right to control and manage the premises."
(Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368
[178 Cal.Rptr. 783, 636 P.2d 1121], italics added.) Unless one's
possessory relationship to premises on which an injury occurred
was sufficient to imply "control and supervisory power" over the
cause of injury (ibid.), one cannot justly have assumed a
"manage[ment]" duty to remedy or warn against a danger which one
neither caused nor aggravated.

In determining whether occupiers of land should be liable for
harm arising on adjacent property for which they disclaim
possessory responsibility, the courts have considered numerous
case-specific factors to decide whether the requisite power and
duty to "supervis[e]" and "manage" the safety of the adjacent
premises has fairly arisen. However, given the extreme facts
before us, it is unnecessary here to reconcile every arguable
ambiguity and inconsistency.

At the very least, nothing in the case law described at length
by the majority and the dissents of Justices Kennard and Brown
suggests that a person owes a duty to protect or warn against
hazards which arise exclusively on the premises of another, and
to which premises the danger is confined, when the person neither
(1) caused or aggravated the dangerous condition, nor (2) holds
any legal right of "supervisory" possession and control over the
premises or the hazard, nor (3) has engaged in conduct
suggesting the "de facto" assertion of such "supervisory"
possession and control, nor (4) has derived any direct benefit
which is linked to the hazard, nor (5) is vested with authority
to remedy the specific danger. Indeed, there are no fair or
rational grounds for imposing a duty of safety management on one
who has none of these connections to the dangerous condition or
the premises on which it is located.

We need go no further to decide this case. Even under the
minimum standard I have just described, the instant trial court's
summary judgment for defendants was correct.
Page 1188

The undisputed facts are that plaintiff was injured when, while
walking on a strip of land owned by the City of Redwood City
(City), he tripped on a broken water meter, which was also owned
by the City and was located entirely on the City-owned strip.
While defendants owned closely adjacent premises, the broken
meter posed no danger to persons on defendants' land. Conversely,
defendants had no legal rights of possession and control in
either the City-owned strip or the defective meter itself, which
gave them supervisory and management powers over those areas.

Moreover, there is no evidence or argument that defendants
derived any direct economic benefit from the City-owned strip, or
from the broken meter itself. It is undisputed that defendants
were not responsible for either the existence or the degree of
the danger on premises they did not legally own, possess, or
control. Nor is there the slightest evidence that defendants
contributed to the danger by encouraging persons to traverse the
area where the hazard was located. Of course, plaintiff does not
contend that defendants had any authority to repair the broken
meter, which was operated and maintained solely by City.

The majority nonetheless hold that there is a triable issue of
defendants' duty at least to warn of the danger, or to cordon it
off. The majority's conclusion seems premised on the notion that
by their conduct, defendants asserted, de facto, some form of
"control" over the City-owned strip. Accordingly, the majority
reason, a trier of fact should be free to hold defendants
generally responsible for the reasonable safety of that area.

Like Justices Kennard and Brown, I disagree. Prior to
plaintiff's injury, defendants' sole relationship to the premises
on which plaintiff was injured — other than the adjacent nature
of their own land — was that they mowed the lawn on the
City-owned strip at the same time they mowed their own.

Contrary to the majority's assertion, this evidence has no
"tendency in reason" (Evid. Code, § 210 Evid.) to prove that defendants
asserted de facto "control" over the City-owned strip of a
degree and nature which might impose a general duty to supervise
and manage its safety. As Justice Kennard suggests, the mere fact
that one enters his neighbor's land from time to time, in order
to conduct limited volunteer caretaking activities which have no
relationship to hazardous conditions on the premises, obviously
does not imply an assumption of supervisory control over all
such hazards, with the attendant duty to manage them safely. To
conclude otherwise, as the majority do, is both illogical and
unfair. Such a conclusion is also bad public policy. Under facts
like those presented here, the majority's rule will discourage
communitarian efforts to maintain the appearance of a neighbor's
neglected land.
Page 1189

Indeed, the majority ultimately concede the weakness of their
analysis. "[S]tanding alone," they acknowledge, evidence that a
landowner mowed his neighbor's lawn would "generally" not
establish "control" sufficient to impose a duty of safe
management of the neighbor's premises. (Maj. opn., ante, at p.
1167.) Hence, the majority bootstrap their result by holding
additionally relevant and admissible, on the issue of "control,"
the fact that after the accident in which plaintiff was
injured, defendants fenced in the lawn, including the City-owned
strip.

But even if postinjury conduct at the scene of an accident may
sometimes be relevant and admissible on a disputed issue of
"control" of the site, that principle is not logically applicable
here. Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548
[85 Cal.Rptr. 308], the primary authority cited by the majority for
this theory, illustrates its proper limits. There, the injured
employee of a subcontractor simply sought to show that the
general contractor, who was jointly involved at the site in the
project which caused the injury, had not relinquished all
"control" of workplace safety conditions at the point where the
subcontractor's employee had fallen from a wall. The employee
presented evidence that the general contractor maintained a
policy of installing guardrails around unprotected areas of
similar elevation throughout the project area, and had placed
such a guardrail at the site of the employee's injury after he
fell. This evidence was properly received, said the Court of
Appeal, on the issue of control of the premises, "and as to whose
duty it was under the contract to take such safety measures.
[Citation.]" (Id. at p. 555, italics added.)

Thus, in Taubman, the very nature of the business relationship
between two contractors created inherent uncertainty about the degree
of responsibility for workplace safety retained by each in their
joint efforts on the contracted project. Evidence that one or the
other actually undertook safety duties on the site, both before and
after the accident, was therefore probative on that issue.

Orthmann v. Apple River Campground, Inc. (7th Cir. 1985)
757 F.2d 909 is to similar effect. There, the court deemed
relevant, on the issue of duty, the fact that defendants had
entered another's property without permission and cut down a tree
thereon which had caused a swimming injury to defendants' inner
tube rental customer. However, the tree-cutting evidence was but
one of numerous indications that, both before and after the
accident, defendants had incorporated the property on which the
tree was located as a recreational attraction of their business
and, although they did not own the property, had "treated it as
if they did." (Id. at p. 913.)

Here, by contrast, there is no other basis for an inference
that, at the time of plaintiff's accident, defendants
maintained any relationship with the City-owned strip or the
defective meter which implied responsibility for safe
Page 1190
management of that hazard. Under these circumstances, evidence of
their later understandable response to plaintiff's accident has
no logical power either to create or to bolster such an
inference.

In sum, evidence that defendants mowed the City-owned strip,
and that they fenced the property after the accident, even when
considered in combination, is not sufficient to create a triable
issue that they asserted "supervisory" possession and control of
the strip, thereby assuming a duty to protect or warn against a
City-owned hazard on that land. It follows that the trial court
did not err in awarding defendants summary judgment. (See
Sprecher v. Adamson Companies, supra, 30 Cal.3d 358, 362.)
Like Justices Kennard and Brown, I would therefore reverse the
contrary judgment of the Court of Appeal.

BROWN, J., Dissenting.

This case should be governed by the venerable judicial maxim:
"[I]f it ain't broke, don't fix it." Unfortunately, the majority
fails to heed this sensible advice, and today's decision
drastically enlarges the potential tort liability of thousands of
California homeowners.

Until now both the rules for finding a duty and the rationale
for imposing adjacent premises liability have been reasonably
clear. The existence of "duty" is a question of law. (Thompson
v. County of Alameda (1980) 27 Cal.3d 741, 750 [167 Cal.Rptr. 70,
614 P.2d 728, 12 A.L.R.4th 701].) Legal duties are not
discoverable facts of nature; they are limiting principles
designed to reduce potentially infinite liability to manageable
proportions. (Tarasoff v. Regents of University of California
(1976) 17 Cal.3d 425, 434 [131 Cal.Rptr. 14, 551 P.2d 334, 83
A.L.R.3d 1166]; Dillon v. Legg (1968) 68 Cal.2d 728, 739
[69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) Until today, the
imposition of a duty was ultimately a question of fairness.

Thus, property owners are liable for injuries on land they own,
possess, or control; they are liable for injuries on adjacent
property if their active negligence created an external effect
which led to the injury; but when they have not created the
external hazard and, as in this case, the question of control
cannot be cleanly resolved, courts have prudently required an
additional prerequisite for liability. In cases where the
landowner or tenant might be liable for off-premises injuries,
courts require evidence of substantial control, a clearly derived
benefit from the use of the particular area that caused
plaintiff's injury, or some combination of control and benefit.
Although not always articulated in the cases implicitly applying
them, the logic of these rules provided a rational and
intelligible basis for finding or rejecting liability in adjacent
premises cases. Until today.

The majority opinion abrogates these essential limits. It
jettisons the requirement that the defendant property owner
derive a benefit directly from
Page 1191
the plaintiff's use of the adjacent area where the injury
occurred and, that restraint on liability removed, posits the
liability of all property owners for injuries sustained on land
over which, as this case pointedly demonstrates, they exercise
only the most insubstantial cosmetic "control." As if to
underscore the limitless reaches of its holding, the majority
leaves the legal question of whether any duty exists to the jury.

I

A

Two recent opinions of the Court of Appeal — both of which
found landowners not liable for off-premises injuries and which
the majority now peremptorily disapproves as precedent —
illustrate the essential conditions for tort liability in the
typical adjacent landowner case. In Swann v. Olivier (1994)
22 Cal.App.4th 1324 [28 Cal.Rptr.2d 23] (hereafter Swann),
the Fourth District Court of Appeal affirmed a summary judgment
in favor of a homeowners association the plaintiff sought to hold
liable for injuries sustained in rough surf along a stretch of
beach near San Clemente. The plaintiff, one of a party of
birthday celebrants visiting a beach owned by the association,
was injured while in the "`surf' of the public ocean, seaward of
the mean high tide line that marks the border" of the
association's private property with the waters of the Pacific.
(Id. at p. 1327.) He sued the association, alleging it had
breached a duty to warn him of the dangerous condition of the
surf. After the trial court granted defendants' motion for
summary judgment, the plaintiff appealed.

A unanimous Court of Appeal affirmed. Starting from "the
commonsense rule that one generally cannot be liable, as a
landowner, for injuries that occur on property outside one's
ownership, possession or control" (Swann, supra,
22 Cal.App.4th at p. 1329), Justice Sills went on to invoke the
"corollary . . . that a landowner has no duty to warn of dangers
beyond . . . her own property when the owner did not create
those dangers." (Id. at p. 1330, italics in original.) The
rule of landowner nonliability for off-premises injuries, the
court said, is subject to only two exceptions. "Landowners or
businesses have been held liable for injuries not technically on their
`premises' when: [¶] (1) they imposed or created some palpable
external effect on the area where the plaintiff was injured;
or [¶] (2) they received a special commercial benefit
from the area of the injury plus had direct or de facto
control of that area." (Ibid., italics added.)

"The first exception," the Swann court wrote, "needs no
elaboration. Obviously one cannot leave a banana peel on a public
sidewalk and escape
Page 1192
liability to the pedestrian who slips on it because one does not
own the sidewalk." (Swann, supra, 22 Cal.App.4th at p. 1331,
fn. omitted.) "The second category is commercial in nature. A
review of five of the cases in this category shows that they are
predicated on the ideas of `creation' and `control,' which can
extend beyond the strict perimeters of the area to which one has
title or a leasehold interest." (Ibid.) The Swann opinion
went on to analyze in detail the five selected cases in which
landowner liability had been upheld — including two relied on in
the majority opinion, Schwartz v. Helms Bakery Limited (1967)
67 Cal.2d 232 [60 Cal.Rptr. 510, 430 P.2d 68], and Johnston v.
De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 [170 P.2d 5]
— before concluding that they "all arose in commercial contexts,
where the defendants received direct pecuniary benefits from the
plaintiff's use of the areas where the plaintiffs were injured."
(Swann, supra, 22 Cal.App.4th at p. 1333.)

"Moreover," the Court of Appeal continued, "the defendants
either directly created the risk (Schwartz) or exercised direct
(Johnston) or de facto (Kopfinger [v. Grand Central Pub.
Market (1964) 60 Cal.2d 852 (37 Cal.Rptr. 65, 389 P.2d 529)],
Johnston and Southland [Corp. v. Superior Court (1988)
203 Cal.App.3d 656 (250 Cal.Rptr. 57)]) control over that
area." (Swann, supra, 22 Cal.App.4th at p. 1333.) Applying
these liability rules to the facts before it, the Court of Appeal
in Swann concluded that "[b]ecause there was no commercial
benefit to the defendants, nor creation or control by them of the
hazards in the precise area where the injury occurred, we hold
defendants owed no duty to warn the plaintiff of the dangerous
condition of the ocean beyond their private beach." (Ibid., fn.
omitted.)

B

As an even more recent opinion by the First District Court of
Appeal makes clear, the liability of landowners for injuries
sustained on adjacent property requires proof of both a direct
(or "special") commercial benefit to the abutting landowner and
"possession or control"; neither condition is sufficient alone.
In Princess Hotels Internat., Inc. v. Superior Court (1995)
33 Cal.App.4th 645 [39 Cal.Rptr.2d 457] (hereafter Princess
Hotels), a vacationing couple, staying at the defendant's
Acapulco hotel, went swimming in the adjacent ocean. Caught in a
sudden undertow, large waves, and riptide currents, the plaintiff
was seriously injured and her companion drowned. In the ensuing
negligence and wrongful death actions, the trial court denied the
hotel's motion for summary judgment on the ground that it had
"`commercially benefit[ed] from the adjacent beach,'" purportedly
distinguishing Swann, supra, 22 Cal.App.4th 1324. (Princess
Hotels, supra, 33 Cal.App.4th
Page 1193
at p. 648.) The Court of Appeal issued a writ of mandate
directing the trial court to enter summary judgment for the
hotel.

Building on the opinion in Swann, supra, 22 Cal.App.4th 1324,
Justice Peterson wrote that "[t]he present case seems to be
Swann once removed: This is a suit against private adjacent
landowners whose property abuts a public beach — owned and
controlled by the Mexican government — in turn abutting the
uncontrollable ocean. Swann provides compelling authority that
the [defendant hotel owner] had no duty to warn as a matter of
law." (Princess Hotels, supra, 33 Cal.App.4th at p. 650.) "One
must be sensitive," the opinion in Princess Hotels observed,
"to the obvious fact that the hotel does substantially
commercially benefit from its oceanfront premises, and that the
proximity of the Pacific Ocean no doubt draws substantial numbers
of paying guests. The argument that because of this commercial
benefit the hotel bears a duty to warn its guests of the ocean's
dangers simply ignores the law of this state. The California
cases, as correctly analyzed by Swann, require control as
well as a commercial benefit; and the ocean is simply not within
the control of humankind." (Princess Hotels, supra,
33 Cal.App.4th at pp. 651-652, italics in original.)

C

These two recent opinions do not stand alone. They build on a
thick strand of precedent whose persistent (if not always
articulated) theme is the commonsense requirement that before one
can be liable for injuries sustained on land she does not own,
the defendant must have exploited the adjacent premises in a way
that was not only "direct," "special," or "unique," but carried
with it an advantage arising out of the plaintiff's use of the
very feature of the adjacent property that led to the injury.
Where these prerequisites are met, the duty properly applies even
though the defendant has no ownership or possessory interest in
the adjacent property, and only exercises "control" over part of
it. As the cases demonstrate, however, the precise nature of the
"control" necessary to support the possibility of tort liability
differs markedly from the control exercised by one who owns or
possesses real property.

The majority's response to these reasoned analyses is simply to
sweep aside these limiting principles as "dicta," and to
disapprove the language in Swann, supra, 22 Cal.App.4th 1324,
and Princess Hotels, supra, 33 Cal.App.4th 645, that presents
an obstacle to its result. (Maj. opn., ante, at pp. 1164-1166.)
However, as the Swann opinion convincingly demonstrates, the
handful of reported adjacent premises cases in which the
landowner has been held liable for injuries sustained on property
the defendant did not own
Page 1194
can only be rationally explained by the fact that the defendant
obtained some tangible, substantial benefit from a feature of the
adjacent property that caused the plaintiff's injury.

As the Court of Appeal's opinion in Swann, supra, 22 Cal.App.4th 1324,
put it, the governing liability rule in these cases requires that
the defendant landowner "receive[] direct pecuniary benefits from the
plaintiff's use of the areas where the plaintiffs were injured." (Id.
at p. 1333, italics added.) It is not enough that the plaintiff was
injured on adjacent property whose features may otherwise have provided some
incremental advantage to the defendant, however attenuated, and
it is certainly not sufficient that the defendant obtained no
benefit whatever from the adjoining property. Rather, liability
in this handful of cases is grounded in some characteristic of
the adjacent property whose use by the plaintiff directly
benefited the defendant.

Viewed from that perspective, the cases upholding landowner
tort liability for injuries on property the defendant does not
own or possess comprise a limited and coherent exception to the
general rule of nonliability. In Southland Corp. v. Superior
Court (1988) 203 Cal.App.3d 656 [250 Cal.Rptr. 57], for
example, the plaintiff patron's use of an adjacent lot in which
to park his car directly benefited the defendant convenience
store owner — additional customers and revenue were the direct
result — and it was the plaintiff's use of the parking lot that
led to his injuries. In Johnston v. De La Guerra Properties,
Inc., supra, 28 Cal.2d 394, the plaintiff fell on an unlit
private walk leading to defendant's restaurant, a passageway that
had been used by restaurant patrons as a convenient means of
entry. Again, the plaintiff's use of the precise area where the
injury occurred — the adjacent walkway — directly benefited the
defendant's business. In Schwartz v. Helms Bakery Limited,
supra, 67 Cal.2d 232, the defendant bakery directly benefited
from the plaintiff's use of a public street to reach the
defendant's bread truck. And in Ross v. Kirby (1967) 251 Cal.App.2d 267
[59 Cal.Rptr. 601], the plaintiff was injured when she fell on a
low-lying drainage berm the defendant restaurant owner had invited
his customers to cross in order to use a rear entrance to his
business, clearly another instance in which the property owner
obtained a direct and business-related benefit from the very feature
of the adjacent property that contributed to the plaintiff's injuries.

Indeed, every case relied on by the majority as upholding
landowner liability for injuries sustained on adjacent property
involved just such a "direct" commercial benefit. In none did the
court uphold tort liability absent a palpable advantage to the
defendant from the plaintiff's use of a feature of the adjacent
property that caused the injury. Each of these cases involved
uncertainties about the "control" the defendant landowner
exercised over the adjacent property.
Page 1195

In Southland Corp. v. Superior Court, supra, 203 Cal.App.3d 656,
666-667, for example, the Court of Appeal relied on a
combination of seven factors to uphold the store owner's tort
liability for injuries its customer suffered after being beaten
in the adjacent parking lot. None of these factors included
outright ownership, possession or control of the parking lot.
But what the court called an "apparent" nonexclusive right to use
the lot for customer parking, together with limited parking on
defendant's premises, knowledge that customers regularly used the
lot, a failure to take action to discourage such use, an obvious
commercial benefit from the additional customer parking, and
repeated problems with juvenile loiterers, led the court to
conclude that the issue of "control" should not "be resolved
solely by reference to a property boundary line and the
fortuitous circumstance" that the plaintiff was attacked a few
feet beyond the boundary line. Instead, although the Court of
Appeal could "not conclude that these circumstances establish
that [defendants] did exercise control over the adjacent lot," in
combination they were sufficient to send the case to the jury.
(Id. at p. 667.)

In Johnston v. De La Guerra Properties, Inc., supra,
28 Cal.2d 394, the tenant restaurant owner had encouraged his
patrons to park in an adjacent service station lot, gaining
access to the restaurant by walking across a narrow "parkway" and
stepping down a few inches from a low wall onto a private walk
leading directly to a side entrance. The plaintiff customer
misjudged the height of the wall one night and, stepping into
darkness, fell and broke her hip. This court reversed a judgment
of nonsuit and held that the plaintiff's evidence supported a
finding that the restaurant tenant was negligent, despite the
fact that the injury occurred on that part of the premises he
neither leased nor occupied. The plaintiff presented evidence, we
said, "that the tenant . . . assumed some responsibility for, and
exercised control over, the means of lighting the approaches to
the side entrance. . . ." (Id. at p. 401.) By installing a
neon sign a few feet above a single light illuminating the side
entrance, and connecting the sign and the light to a common
switch, a jury could have found that the restaurant operator "had
a limited right of control over this portion of the premises and
of the means of illuminating the entranceway," knew of the
attendant danger at night, and failed to warn business visitors
of the risk. (Ibid.)

In Ross v. Kirby, supra, 251 Cal.App.2d 267, the back door
to defendant's restaurant fronted directly onto an adjoining
public parking lot, and three feet from "an irregularly shaped
asphalt drainage berm" paralleling defendant's building; half of
the berm's four-inch width lay on city-owned property, the other
half on the property adjoining defendant's lot. (Id. at p.
268.) Relying on Johnston v. De La Guerra Properties, Inc.,
supra, 28 Cal.2d 394, the Court of Appeal affirmed a judgment of
liability against the restaurant
Page 1196
operator. Why? Not because defendants "controlled the walkway,"
but because they "knew the berm was present and by the location
of the back door, invited the general public to enter from the
parking lot. Thus, they derived a special benefit apart from the
ordinary and accustomed use of the walkway." (Ross v. Kirby,
supra, 251 Cal.App.2d at p. 270.) The court also relied on
substantial evidence that the berm could not be seen because the
white paint the city had applied to it had worn off that part
paralleling defendant's restaurant, a condition supporting "a
logical inference . . . that the foot traffic from the parking
lot to the back door of the restaurant caused the paint to wear
off." (Id. at p. 271.)

We relied on Johnston v. De La Guerra Properties, Inc.,
supra, 28 Cal.2d 394, and Ross v. Kirby, supra, 251 Cal.App.2d 267,
among other cases, in Schwartz v. Helms Bakery Limited, supra,
67 Cal.2d 232, where we summed up — and even may have broadened — the
liability rule at work in these cases. The plaintiff, a child of four
acting at the suggestion of the defendant bakery truck driver to meet
him up the street to buy a doughnut, was struck by an automobile as
he crossed in the middle of the block. We reversed a judgment of
nonsuit, stating, in pre-Rowland v. Christian language (Rowland v. Christian
(1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d
496]), that "[a]n invitor bears a duty to warn an invitee of a
dangerous condition existing on a public street or sidewalk
adjoining his business which, because of the invitor's special
benefit, convenience, or use of the public way, creates a
danger." (Schwartz v. Helms Bakery Limited, supra, 67 Cal.2d
at pp. 239-240, fn. omitted, italics added.) Although Justice
Tobriner's opinion for the court asserted that "[t]he crucial
element" on which liability depends "is control" (id., at p.
239), it is evident from the facts of the case that "control" in
any meaningful sense has all but disappeared from the liability
equation. It is replaced by the defendant's knowledge of "a
dangerous condition existing on a public street or sidewalk
adjoining [defendant's] business." (Ibid.) This was so, the
court in Schwartz reasoned, because the "premises may include
such means of ingress and egress as a customer may reasonably be
expected to use." (Ibid.)

In each of these cases, the equivocal character of the
defendant property owner's actual "control" over the adjacent
property was supplemented — and occasionally replaced — by the
commonsense perception that, because the defendant had derived a
direct, business-related benefit from the use made by the
plaintiff of the very feature of the adjoining property that led
to the injury in suit, tort liability was properly a matter for
the trier of fact to determine. However rough-and-ready it may
appear in theory, this reading of the case law has an instinctive
appeal. Imposing liability on a property owner for injuries
sustained on adjoining land seems sound in these cases
Page 1197
not so much because the defendant exercised "control" over the
adjacent property in the same sense an occupier "controls" land
she owns or leases, but because the nexus between the plaintiff's
injury, the causal role of some feature of the adjoining
property, and the related benefit to the defendant property
owner, make liability appropriate.

Thus the formulation by the Court of Appeal in Swann, supra,
22 Cal.App.4th 1324, and Princess Hotels, supra, 33 Cal.App.4th 645,
is accurate. A property owner who receives "`direct pecuniary
benefits from the plaintiff[s'] use of the areas where
the plaintiffs were injured' and `either directly created the
risk [citation] or exercised direct [citation] or de facto
[citations] control over that area'" may be found liable for the
plaintiff's injury. (Princess Hotels, supra, 33 Cal.App.4th at
p. 649, quoting Swann, supra, 22 Cal.App.4th at pp. 1331-1333,
italics in original.)

Of course, the corollary also applies. In the absence of a
direct benefit derived from the very feature of the adjoining
property that caused the plaintiff's injury, no liability should
attach. The majority insists that the result in Johnston v. De
La Guerra Properties, Inc., supra, 28 Cal.2d 394, would have
been the same if the plaintiff, instead of having been injured on
a defective walk adjacent to the defendant's restaurant, had been
a social guest who suffered a like injury while approaching the
defendant's residence. I disagree. Indeed, as I read these cases,
the office of the so-called "benefit" requirement is to limit the
potential for tort liability in adjacent premises litigation by
identifying a causally significant feature to serve as a
functional substitute for the ownership or possession that, by
definition, is absent from these adjacent premises liability
cases. That a "direct" or "special" benefit to the defendant
landowner should have been singled out is hardly surprising.
Benefit is frequently the pivot on which legal duties, and
liability for their breach, turn.

II

It is possible the majority is impliedly adopting a new rule in
the aftermath — almost 30 years on — of this court's opinion in
Rowland v. Christian, supra, 69 Cal.2d 108, and is now
obliterating altogether the link between a direct commercial
benefit and a corresponding legal duty that has long served as
the underlying basis for liability in the adjacent premises
cases. It is true, of course, that Rowland v. Christian
abolished the distinction between business invitees and other
classes of visitors to real property, supplanting it with a
property owner's general duty to "act[] as a reasonable [person]
in view of the probability of injury to others. . . ." (Id. at
p. 119.) It is a dramatic leap, however, from that proposition to
the view that the
Page 1198
substantial distinction between those who derive a commercial
benefit from the plaintiff's use of a feature of adjacent
property and those who do not is simply not relevant to the
question of liability.

Moreover, as Justice Kennard has noted, applying the Rowland
v. Christian criteria demonstrates that liability should not
attach in this case. (Dis. opn. of Kennard, J., ante, at pp.
1182-1183.) While it is "foreseeable" that one in plaintiff's
precise circumstance might be injured by stepping on the
defective meter housing cover, and certain that plaintiff was
injured, not one of the remaining factors outlined in Rowland
supports liability in this case. Indeed, several pull strongly in
the opposite direction. The lesson of this case is simple: Do no
good works lest you incur liability. The homeowner who clears
brush from public lands to minimize fire danger; the property
owner who pays a horticulturist to prune trees in a subdivision's
common area, as well as the landlord who mows an unowned strip of
ground, may now be liable to anyone injured on the premises even
though their activity is completely unrelated to the cause of the
injury.

These defendants did nothing villainous or even negligent. They
neither created the hazard, nor made it worse, nor obtained a
"commercial benefit" from the plaintiff's "use" of it. Moreover,
they had no ability to correct a problem that resulted from the
city's apparent negligence. Instead, defendants acted responsibly
by mowing the city-owned strip between their property and the
sidewalk rather than allowing it to become an eyesore. And once
an injury occurred, they sought to prevent future problems. For
their pains, the majority will teach them the truth of another
old adage: "no good deed goes unpunished."

CONCLUSION

I would reverse the judgment of the Court of Appeal and direct
the trial court to enter summary judgment for defendants.
Page 1199