PERSONAL INJURY/ TORTS OPPOSITION TO DEMURRER- PREMISES LIABILITY
Attorney for Plaintiffs
JOSEPH GREEN AND HELEN GREEN,
Plaintiffs,
vs.
ACMEBEST, INC., and DOES 1 to 10, inclusive,
Defendants.
Case No.
PLAINTIFFS' OPPOSITION TO DEMURRER
Date:
Time:
Dept.
Trial date:
INTRODUCTION
Plaintiffs Joseph and Helen Green sued defendants Acmebest, Inc., and various Doe defendants for general negligence and premises liability. Plaintiffs filed their original complaint against several private entities, the City of Sunflower, and the County of Catskill, as well as Doe defendants. Plaintiffs' Amended Complaint, filed before defendants answered, names the corporation and Doe entities as the sole defendants.
Defendant corporation bases its demurrer to plaintiffs' first and second causes of action on its strained interpretation of the duty of care plaintiffs asserted, and its contention that the facts alleged in the two versions of the complaint contradict each other. Read together, plaintiffs' pleadings do not contradict each other: the amended complaint merely provides more specific detail about the condition of defendant's property. Further, because the facts plaintiffs alleged are adequate to show that defendant owed plaintiffs a duty of care, defendant's demurrer to plaintiffs' first and second causes of action should be overruled.
PLAINTIFFS' ALLEGATIONS
Plaintiffs allege that on or about October 14, 2000, plaintiff Helen Green was walking westbound on a pedestrian pathway directly abutting Brownstone Highway, in an industrial park in the City of Sunflower. The original complaint describes the area on which Ms. Green was walking as a "grassy abutment." Plaintiffs further allege that as Ms. Green was lawfully walking along the pathway, she encountered an obstruction--an overgrown area of trees and shrubs approximately 20 feet long--that encompassed the entire width of the path. This obstruction required her to detour off the path and into the abutting vehicular roadway. After she stepped onto the road, she was struck by an automobile and severely injured.
Plaintiffs allege that defendant created the obstruction on the pathway during the time it "owned, maintained, and possessed the subject property." They state that defendant "had a duty to maintain the pathway in a safe and reasonable condition for its known and continuing pedestrian passage use, and to protect pedestrians from being forced onto the roadway . . . ." The first amended complaint details that defendant knew, or had reason to know, that pedestrians regularly used the pathway, and had done so for many months or years because there was no other pathway pedestrians could safely use. Plaintiffs allege that, by failing to maintain the pathway in a safe and unobstructed condition, defendant exposed lawfully-present pedestrians, like plaintiff Helen Green, to the unreasonable and foreseeable risk of being struck by an automobile after being forced to detour into the roadway.
ARGUMENT
1. Plaintiffs have stated a proper cause of action against defendants for general negligence.
A. California law recognizes that one who negligently obstructs a sidewalk or pedestrian pathway may be held concurrently liable for the pedestrian's injuries when he is forced to detour into the street and is struck by a vehicle.
A person is responsible to another for the harm he causes when he neglects to manage his property with "ordinary care." Civ. Code §1714(a).(1) California law has also long recognized the doctrine of concurrent negligence: "'[w]here direct injury is occasioned by the separate, but concurrent negligence of two parties at one and the same time, an action will lie against one and all of them.'" Hansen v. Market St. Ry. Co. (1923) 64 Cal.App. 426, 432-433, (citing Doeg v. Cook, 126 Cal. 213, 218).
Adhering to these general principles, California tort law has long recognized that where a person negligently obstructs a sidewalk, pedestrian pathway or safezone, forcing a pedestrian to detour into the street and risk being struck by a negligently-driven vehicle, the person responsible for the obstruction may be held concurrently liable for any injuries the pedestrian suffers. Hansen, supra, 64 Cal.App. at 430. In Hansen, a case with facts strikingly similar to those here, the plaintiff was walking along a sidewalk when he encountered a pile of dirt in his path. Defendant water company had piled the dirt on the sidewalk in the course of digging a trench along the adjacent roadway, over which ran trolley tracks. On encountering the dirt pile, plaintiff diverted his path and walked along the trolley tracks, where he was struck from behind and seriously injured. Plaintiff sued both the trolley company and the water company; the trial court granted both defendants' motions for nonsuits.
The court of appeals reversed these judgments, and held that under the facts a reasonable jury could find the defendant water company concurrently liable for the plaintiff's injuries by reason of its negligence in leaving the dirt pile positioned so that pedestrians were forced to detour onto the adjacent trolley track. Id., at 430. The holding recognized that one who negligently creates a condition posing a risk of harm to others should foresee third parties' subsequent negligent acts. 6 Witkin, Summary of California Law (9th ed., 1988) Torts, §980, at 371.
Plaintiffs' first amended complaint alleges that defendant owed a duty of care to pedestrians, such as plaintiff Helen Green, who it knew or had reason to know lawfully traveled on this pathway adjacent to the road, to exercise due care by refraining from obstructing their safe passage on the pathway. The complaint also alleges that defendant knew or should have known that creating an obstruction in the pathway would force pedestrians to walk in the roadway, thereby running the risk of being struck by automobiles. Under Hansen, these facts state a proper cause of action for negligence against defendant.
B. As a landowner, defendant may be held liable for negligent management of its property that results in injuries occurring off the premises.
The owner of land is responsible for any injury caused to another through his want of ordinary care and skill in his property's management. Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 363 (citing Civ. Code §1714). The landowner's liability turns on whether he or she has managed the property as would a reasonable person under the circumstances, accounting for factors such as the risk of injury involved and the landowner's degree of control over the risk-creating condition. Id., at 371-371 (abrogating common law immunity for landowner's liability for injuries caused by natural conditions of land to persons outside of the premises).
Applying this same principle, abutting landowners have been held liable to pedestrians for defects or obstructions on a sidewalk that are attributable to the owner's own negligence. Jones v. Deeter (1984) 152 Cal.App.3d 789, 803-804. "A property owner who creates a dangerous condition on a public roadway is liable for foreseeable injuries caused thereby. [Citation.]" Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515. Foreseeability plays a key role in the court's analysis of the existence of duty. Id., at 515-516. Yet, factual circumstances will arise where certain negligent acts of third parties are potentially foreseeable, but the property owner's connection to an accident on adjacent property becomes too attenuated to impose a duty of care on that landowner as a matter of law. Id., at 516-517.
In Scott, a drunk driver struck a guardrail beside a highway, crossed the highway median, and struck plaintiff's car, causing severe injuries and death. Defendant owned the property adjacent to the guardrail, where it had installed electrical equipment. Plaintiffs presented evidence that the state had erected the guardrail to keep vehicles straying off the roadway from hitting this electrical equipment, but the trial court granted summary judgment on the grounds that the landowner owed plaintiffs no duty of care. The court of appeals affirmed, holding that the landowner's mere placement of the equipment next to the roadway did not necessarily create an unreasonable risk of harm; the only evidence that the equipment presented any risk was the state's decision to install a guardrail. Id., at 516. Further, the equipment's placement did not create a foreseeable risk of harm to motorists involved in accidents across the highway median, and any connection with the equipment's placement was "too attenuated" to impose a duty of care on the landowner. Id., at 516-517. But the court specifically distinguished the case from those where property owners "place a fixed object where it is reasonably foreseeable that persons traveling with reasonable care would deviate from the highway in the ordinary course of travel." Id., at 517, n.3.
In contrast to Scott, defendant's obstruction of the pedestrian pathway in this case presented a clearly foreseeable risk of the type of injury suffered by plaintiff Helen Green: that she would be forced to detour into the roadway and risk being struck by an automobile. Defendant's connection to the accident is not too attenuated to conclude that it owed pedestrians like plaintiff a duty of care to refrain from obstructing the pathway, because that negligent act worked concurrently with the driver's negligence as the proximate or legal cause of plaintiff's injuries. Hansen, supra, 64 Cal.App. at 430. Thus, because plaintiffs have stated a proper cause of action against defendant for negligence, its demurrer to plaintiffs' first cause of action should be overruled.
2. Plaintiffs have stated a proper cause of action for premises liability against defendants.
A. A landowner may be held liable for injuries occurring off the premises where a condition on the premises created the risk of harm.
As noted above, a landowner can be held liable for injuries that occur off the premises where his or her management of the property, or a dangerous condition on the property, causes injury on adjacent property. Sprecher, supra, 30 Cal.3d at 373. Thus, a landowner may be held liable for injuries occurring off of his or her property where the landowner created the danger. Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 856.
Plaintiffs' first amended complaint alleges that the pathway on which he was walking ran across defendant's property. It further alleges that a dangerous obstruction on that property forced him to detour into the road, where he was struck by an automobile. Consequently, plaintiffs have stated a proper cause of action for premises liability because they have alleged that defendant's obstruction of the pathway created a dangerous condition to persons on the property by diverting their path across the property into a roadway.
B. Even if defendant had no duty under state law to build a sidewalk across its property, it had a duty to maintain the pedestrian pathway on its property in a safe condition.
Defendant cites Streets & Highways Code §5870 et seq. and its purported compliance with the statute as determinative of its duty to maintain the path. Although this statute may determine when a landowner is required to construct sidewalks on his or her property to be dedicated for public use, this statute has no bearing on defendant's responsibility to maintain a pathway across its premises in a safe condition. Even assuming this statute applies, defendant's compliance with it does not constitute an exercise of due care as a matter of law. Jensen v. Southern Pac. Co. (1954) 129 Cal.App.2d 67 (compliance with state safety statute does not constitute full discharge of duties to the public because these merely set minimum standards of conduct).
Plaintiffs have ascribed no legal status to the pathway in their complaints: they merely allege that plaintiff was lawfully using the pathway. One could infer from the facts alleged, including the pathway's condition, that members of the public having business in the industrial park in which defendant's property was located had defendant's implied permission to use the path. Defendant had a duty as a landowner to ensure that persons using the path on its property did not encounter some unreasonable risk of harm because of defendant's management of its property. Civ. Code §1714(a).
Defendant asserts that Streets & Highways Code §5610 imposes no duty on a landowner to repair a public sidewalk abutting its property for pedestrians' benefit. Williams v. Foster (1989) 216 Cal.App.3d 510, 515. This statute specifically shifts the duty of repair and maintenance for property subject to a dedication or public easement to the owner of the property subject to the easement. Jones, supra, 152 Cal.App.3d at 802. But this statute has no relevance to the landowner's duty to maintain private sidewalks or paths on its property. That duty requires a landowner to exercise due care in the management of his property to avoid injuries to others. Civ. Code §1714(a).
Defendant's assertion that plaintiff Helen Green must have been a trespasser on defendant's property, and therefore that defendant owed no duty to ensure her safe travel on the path, directly contradicts the pleadings, in which plaintiff alleges she was lawfully present on the property, and current law defining the landowner's duty of care. The common-law classifications for determining a landowner's duty based on the injured person's status as an invitee, licensee, or trespasser have been abolished. Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158, n.2. Instead, the courts define the landowner's duty by applying "'ordinary principles of negligence.'" Ibid., citing Rowland v. Christian (1968) 69 Cal.2d 108, 118, 70 Cal.Rptr. 97.
The status of a party injured because of a landowner's negligence may become relevant as to the issue of foreseeability and whether the property's condition created an unreasonable risk of harm. See Williams v. Karl Sprecher Enterprises, Inc. (1986) 182 Cal.App.3d 479, 487. Plaintiffs have alleged that defendant knew, or should have known, that pedestrians had been using the pathway for many months--even years--because no other means of safe pedestrian passage existed. They also allege that defendant had actual or constructive knowledge of the premises' condition, and that obstructing the pathway would force pedestrians to detour into the vehicular roadway. Regardless of the common-law status of each pedestrian who used the pathway, defendant knew of its presence on its property and that the pathway obstruction posed a foreseeable risk of harm to pedestrians forced to detour around it. Consequently, plaintiffs have stated a proper cause of action against defendant for premises liability.
C. Plaintiffs have alleged facts adequate to demonstrate that defendant exerted control over the vehicular roadway by diverting pedestrians to walk into it.
In Alcaraz, the supreme court reconfirmed that the physical boundaries encompassed by a landowner's premises--particularly business premises--may extend beyond the formal property boundaries to include areas (such as that for ingress and egress) that the landowner could reasonably expect visitors on the property to use. The court reasoned that "'[t]he crucial element is control.'" Alcaraz, supra, 14 Cal.4th at 1158, citing Green v. Helms Bakery Ltd. (1967) 67 Cal.2d 232, 239.
Plaintiffs have alleged that defendant owned the property abutting the roadway on which the pedestrian pathway was located. Plaintiffs' first amended complaint also alleges that defendant exerted control over the vehicular roadway and the traffic on it by diverting pedestrians walking on its property into the roadway. Because plaintiffs have alleged that defendant exercised control over the property on which plaintiff was injured, plaintiffs have stated a proper cause of action against it for premises liability, and defendant's demurrer to plaintiffs' second cause of action should be overruled.
CONCLUSION
Because plaintiffs have stated proper causes of action for general negligence and for premises liability, defendant's demurrers to plaintiffs' first and second causes of action should be overruled; in the alternative, if the demurrers are sustained, plaintiffs should be granted leave to amend.
Dated:
Respectfully submitted,
___________________
Attorney for Plaintiffs
1. Everyone is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of property or person, except so far as the latter has willfully, or by want of ordinary care, brought the injury upon himself.Civ. Code §1714(a).