On Monday, the California Supreme Court issued an opinion that limits duty and liability in premises liability cases. In a surprise move, the Court ruled “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”
In Vasilenko v. Grace Community Church, the plaintiff, Vasilenko, was struck by a car while he crossed the street between the main premises of a church and the church’s overflow parking area. Vasilenko contended that the church owed him a duty of care to assist him in safely crossing the public street.
Notably, “[t]he 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, Ltd. (1967) 67 Cal.2d 232, 239, emphasis added.)
Nevertheless, California courts “have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not have the right of possession, management and control.” (Seaber v. Hotel Del Coronado(1991) 1 Cal.App.4th 481, 489, emphasis added; see also Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142 [host of a business party could not be held liable for a criminal assault on a guest that occurred in a nearby parking lot that the host neither owned nor controlled].)
But there has been testing of this limitation: For example, the use of the “commercial benefit” theory of liability was first was used in the context in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379. There, the court 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 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.” (Id. at 386, citations omitted.)
The decision in Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656 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 661.)
However, 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 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 666-67, footnote 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 [sic] 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.” (Id. at 667.)
And while it is true that “the duty of care of the occupier of property arises from his right to control his own premises, such duty may be imposed when he invites intended customers to use, in conjunction therewith, another’s property over which his right of control is, perhaps, more apparent than actual.” (Nevares v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 804, emphasis added.)
Of course, the case law has not been uniformly this expansive. By comparison, in Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 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 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 1590.)
Similarly, in Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, a plaintiff was injured when he left the defendant’s law library building at about 10:30 p.m. and headed toward his parked car. While standing on the public sidewalk he heard the sound of breaking glass. His eventual assailant was breaking into a car parked on the street near the law school building’s northwest corner. The plaintiff jogged up to the car, a confrontation took place and during the ensuing struggle plaintiff was stabbed. Plaintiff brought suit against the defendant law school alleging that it had a duty to provide for the security of its students with exterior lighting and security patrols around the law school building. The plaintiff claimed that the law school was aware of criminal activity in the immediate area and that since no student parking was provided by the law school, students had to traverse a dangerous area after leaving the school premises.
There, the court held that the defendant law school had no duty to protect its adult students from a criminal assault on the sidewalk bordering its building. The court noted that the law school had done nothing to voluntarily assume a duty to protect its students once they had left its premises. The court emphasized that “[the] law of premises liability does not extend so far as to hold Cal Western 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.” (Donnel v. California Western School of Law, supra, 200 Cal.App.3d at 720.)
The California Supreme Court in Vasilenko is a surprising departure from the line of cases extended liability to any area of actual or apparent control. In reaching its holding, the Court paid particular attention to the decision Barnes v. Black (1999) 71 Cal.App.4th 1473. In that case, the court found that “[a] landowner’s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off-site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.” (Ibid. at 1478-79; see also Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 39 [holding that defendant had a duty to warn patrons leaving the restaurant that only a right turn could safely be made from the restaurant’s exits].)
In Barnes, the appellant-family lived in an apartment complex owned by the respondent-trust. Several of the apartment complex residents informed respondent of a dangerous condition existing in the children’s play area and the need for a fence. Subsequently, the appellant’s son died when he lost control of his tricycle, rolled into the street, and was struck by an automobile. The appellant sued for negligence, premises liability, and negligent infliction of emotional distress, claiming that the death was a result of the child being ejected from respondent’s premises by its dangerous configuration. (Barnes v. Black, supra, 71 Cal.App.4th at 1476-77.)
The Court in Vasilenko took care to distinguish Barnes in its application of the Rowland factors: the foreseeability of harm to the injured party; the degree of certainty he or she suffered injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved. (See Rowland v. Christian (1968) 69 Cal.2d 108, 113, abrogated in part by statute as stated in Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714.) Finding no duty where the Church had done nothing more than site and maintain a parking lot that requires its invitees to cross a public street, the case has provided some much-needed clarity regarding the extent of premises liability – as well as some peace of mind for landowners across California.