Moses v. Roger-McKeever ( 2023 )

Filed 5/5/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ELEANOR MOSES,
Plaintiff and Appellant,
A164405
v.
PASCALE ROGER-MCKEEVER, (Alameda County
Super. Ct. No. RG20050056)
Defendant and Respondent.
Plaintiff Eleanor Moses slipped and fell on a walkway outside the
condominium rented by defendant Pascale Roger-McKeever after attending
an event hosted by Roger-McKeever. Moses filed a complaint against Roger-
McKeever for premises liability. After the trial court granted Roger-
McKeever’s motion for summary judgment, Moses appealed. We conclude
that Moses did not raise a triable issue of material fact as to whether Roger-
McKeever owed her a duty of care to protect her against the allegedly
dangerous condition of the walkway. For that reason, we affirm the
judgment.
I. BACKGROUND
On the evening of February 3, 2018, Roger-McKeever hosted a small
gathering for members of a political activist group at a condominium she
rented in Albany. Moses was one of the attendees. Two years later, in
January 2020, Moses filed a personal injury complaint for a slip and fall that
allegedly occurred on or near the entryway steps to Roger-McKeever’s
1
condominium that night. 1 Moses alleged in the complaint that while she was
on the premises on February 3, 2018, Roger-McKeever was aware of—or
should have been aware of—and negligently allowed a dangerous condition to
exist causing Moses to suffer serious injuries.
In April 2021, Roger-McKeever filed a motion for summary judgment
on the ground that Moses could not establish one or more elements of her
premises liability claim. Roger-McKeever first argued that she did not owe a
legal duty to Moses because the slip and fall occurred in a common area or on
the public sidewalk, areas that were not under Roger-McKeever’s
responsibility or control. She further contended that, even if her legal duty
extended to the area where the slip and fall occurred, she could not be held
liable because she did not have actual or constructive notice of the allegedly
dangerous condition that caused the fall. In particular, she had no
involvement in the construction, maintenance, or repair of the walkway.
Moreover, she had been living at the condominium for several years and the
walkway steps had been in regular use during that time by numerous guests,
yet no one had ever complained to her about the condition of the steps or the
lighting in the entryway. Finally, Roger-McKeever argued that there was no
evidence that she acted or failed to act so as to cause Moses’s injuries. Roger-
McKeever supported her motion with her declaration and excerpts from the
depositions of two individuals who also attended the February 3 meeting and
whose testimony indicated that the walkway was not noticeably dark that
night.
Moses also brought this action against the owners of the condominium
1
and Carapace Ten Homeowners Association. However, this is an appeal from
an order granting a summary judgment motion brought by Roger-McKeever,
and thus we focus on the allegations concerning her.
2
In opposition, Moses argued that there were genuine issues of material
fact as to whether Roger-McKeever was on actual or constructive notice that
the stairs leading up to her condominium was in an unsafe condition, and
therefore Roger-McKeever owed a duty of care to Moses. In support, Moses
provided her declaration stating that, upon her arrival to Roger-McKeever’s
condominium, she mentioned to Roger-McKeever that the entryway was
dark. Roger-McKeever acknowledged the issue and “was apologetic
indicating that there was an electrical problem with the porch light.”
According to Moses’s declaration, Roger-McKeever explained that her
landlord had not been responsive in repairing the light. A photograph
attached to the declaration depicted three steps leading up and away from a
street sidewalk and to a short walkway that ended at a door to Roger-
McKeever’s condominium (the entryway or walkway). Moses stated in her
declaration that when she was leaving the condominium, she was not able to
see the second step and lost her footing and fell. She also provided a
declaration from a mechanical engineer, who opined that the steps were
“grossly” out of compliance with applicable building code, and that the
absence of a handrail and the riser heights of the steps were probable causes
of the accident.
In reply, Roger-McKeever argued that Moses’s evidence that the
lighting was inadequate was at best in “equipoise” to Roger-McKeever’s
evidence on that issue, and thus Moses did not sufficiently raise a triable
issue of material fact. She further asserted that Moses failed to point to any
element of the entryway or the entryway steps that would have put a
reasonable person on notice of an unreasonable risk. And she claimed that
the declaration of the mechanical engineer was inadmissible.
3
In October 2021, the court granted Roger-McKeever’s summary
judgment motion. The court found that Roger-McKeever made a prima facie
showing that she was a tenant of the condominium who did not have control
over the entryway steps or the outside lighting where Moses was injured, and
thus she had no duty to maintain or repair that area. The court also
concluded that Roger-McKeever did not have a duty to warn Moses because
she did not have prior notice that the steps were a “non-obvious” dangerous
condition of the premises “beyond the obvious danger of falls all stairways
present.” The court determined that Moses failed to present sufficient
evidence to create a triable issue of material fact on those issues.
Additionally, Moses did not present any legal authority for the proposition
that a tenant in Roger-McKeever’s position would have a duty to warn Moses
of, or to remedy, the allegedly dangerous external conditions.
Moses appealed from the resulting judgment.
II. DISCUSSION
The elements of a premises liability claim such as the one at issue in
these proceedings are: a legal duty of care; breach of that duty; and proximate
cause resulting in injury. (See Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1158.) Here, Moses argues that the trial court erred in granting Roger-
McKeever’s summary judgment motion on the ground that she did not raise a
triable issue of material fact showing that Roger-McKeever’s legal duty of
care extended to the walkway outside her condominium. Additionally, Moses
asserts she raised a triable issue of material fact as to whether Roger-
McKeever had actual or constructive knowledge of the lack of adequate
lighting in the walkway. We find the scope of Roger-McKeever’s duty of care
dispositive and therefore affirm.
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A. Basis for Summary Judgment and Standard of Review
Summary judgment is properly granted if “there is no triable issue as
to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A defendant seeking
summary judgment must show that the plaintiff cannot establish at least one
element of the cause of action.” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618; see Code Civ. Proc., § 437c, subd.
(p)(2).) If the defendant makes this showing, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd.
(p)(2).)
On appeal, we independently review an order granting summary
judgment, “ ‘ “ ‘considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.’ ”
[Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.’ ” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc.
(2014) 59 Cal.4th 277, 286.) Moreover, “[w]e must affirm a summary
judgment if it is correct on any of the grounds asserted in the trial court,
regardless of the trial court’s stated reasons. [Citation.] Even if the grounds
entitling the moving party to a summary judgment were not asserted in the
trial court, we must affirm if the parties have had an adequate opportunity to
address those grounds on appeal.” (Garrett v. Howmedica Osteonics Corp.
(2013) 214 Cal.App.4th 173, 181.)
B. The Existence of a Duty of Care and the “Control” Requirement
Every person has a duty to exercise, “in the management of his or her
property or person,” reasonable care for the safety of others. (Civ. Code,
5
§ 1714, subd. (a); see also Vasilenko v. Grace Family Church (2017) 3 Cal.5th
1077, 1083.) This duty is not absolute; a defendant generally does not have
an affirmative duty to protect others when he or she has not created the peril
or increased the risk of danger. (Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 214–215.) “ ‘The proper test to be applied to the liability of the possessor
of land in accordance with [Civil Code section 1714] is whether in the
management of [one’s] property [one] has acted as a reasonable [person] in
view of the probability of injury to others.’ ” (Kinsman v. Unocal Corp. (2005)
37 Cal.4th 659, 672.) This duty is not limited to one who holds title over the
land “ ‘but, rather, [is] owed by the person in possession of the land . . .
because [of the possessor’s] supervisory control over the activities conducted
upon, and the condition of, the land.’ ” (Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1157–1158 (Alcaraz).) To comply with this duty, the possessor of land
must “ ‘ “ ‘ “inspect [the premises] or take other proper means to ascertain
their condition” ’ ” ’ and, if a dangerous condition exists that would have been
discovered by the exercise of reasonable care, has a duty to give adequate
warning of or remedy it.” (Staats v. Vintner’s Golf Club, LLC (2018) 25
Cal.App.5th 826, 833, fn. omitted.)
However, “[a] defendant cannot be held liable for the defective or
dangerous condition of property which it [does] not own, possess, or control.”
(Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, overruled
on other grounds in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 678.) Thus, “ ‘[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. It is clear, however, that if the tenant
6
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.’ ” (Alcaraz, supra, 14 Cal.4th at p.
1158.) The “ ‘crucial element is control.’ ” (Id. at p. 1158, italics omitted.)
Roger-McKeever argues that the duty of care she owed Moses did not
extend to the walkway because she did not own, possess, or control the
walkway, which was outside the premises she leased. Moses argues, in
contrast, that the evidence shows Roger-McKeever had control over the
walkway, and, even if she did not have control, she still owed Moses a duty of
care because she “impliedly adopted” the walkway by inviting Moses to her
condominium. We conclude Roger-McKeever has the better argument.
1. Control: Alcaraz and Related Cases
In Alcaraz, our high court clarified the standard for determining when
a party who does not own land has a duty to warn of or remedy dangerous
conditions on that land, focusing on the requirement that a defendant
“control” the area where the plaintiff’s injury occurred. The case concerned a
tenant who suffered injury when he stepped into a water meter box located in
the lawn in front of the rental property he occupied. (Alcaraz, supra, 14
Cal.4th at p. 1152.) The landlord defendants did not own or control the meter
box, and the city owned the narrow strip of land where the meter box was
located. (Id. at pp. 1155–1157.) On appeal from summary judgment in favor
of the defendants, the parties disputed whether the defendants exercised
control over the narrow strip of land such that they had a duty of care to
protect against dangerous conditions on that strip of land. (Ibid.) The
evidence showed that the defendants maintained the lawn that covered the
narrow strip of land and that they constructed a fence that enclosed the
entire lawn, including the strip of land. (Id. at pp. 1161–1162.)
7
The court found that a triable issue of material fact existed as to
whether the defendants exercised control over the strip of land, and that if
the defendants did exercise control, they had a duty to protect or warn the
plaintiff of the allegedly dangerous condition of the property. (Alcaraz, supra,
14 Cal.4th at p. 1170.) The court grounded its analysis in prior case law:
“[T]he 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.” (Id. at pp. 1157–1159.)
“In common law parlance, the possessor of land is the party bearing
responsibility for its safe condition[,]” and “ ‘[p]ossession, in turn, is equated
with occupancy plus control.’ ” (Id. at p. 1159.)
In determining what constituted “control,” the court held that
performing “minimal, neighborly maintenance of property owned by another”
generally will not on its own constitute an exercise of control giving rise to a
duty to protect or warn persons entering the property. (Alcaraz, supra, 14
Cal.4th at p. 1167.) It concluded, however, that the defendants’ act of
constructing a fence surrounding the strip of land at issue was sufficient to
raise a triable issue of material fact on the issue of control because it showed
that the defendants treated the strip of land “as their own” and “as an
extension of their front lawn.” (Id. at pp. 1162, 1168.)
The court cited with approval its prior decision in Johnston v. De La
Guerra Properties, Inc. (1946) 28 Cal.2d 394 (Johnston), where one of the
issues before the court was whether a tenant was liable for injuries the
plaintiff sustained on an unlit walkway outside the tenant’s leased premises
that led to a side entrance to the building. (Alcaraz, supra, 14 Cal.4th at p.
1158, citing Johnston, at pp. 398, 401.) The tenant operated a restaurant in
its leased portion of the building. (Johnston, supra, at p. 396.) The court
8
held that “[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[,]” because in such cases, the owner “has the right of control
and the duty to maintain that part of the premises in a safe condition.” (Id.
at p. 401.) The court further held, 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.” (Ibid.) In that case, there was evidence that the
tenant had installed a neon sign with the name of his restaurant and had
connected the sign to the only light placed on the outside wall above the side
entrance such that the sign and the light operated on one switch. (Ibid.) The
court found that this evidence showed that the tenant “assumed some
responsibility for, and exercised control over, the means of lighting the
approaches to the side entrance . . . [,]” and the sign, “which was under the
control of [the tenant], served not only as an invitation to use the
entranceway to the restaurant, but also to illuminate the general area.”
(Ibid.) The court thus concluded that the evidence supported a finding that
the tenant had a duty to warn the plaintiff of the dangerous condition of the
walkway. (Ibid.)
But absent evidence that a tenant exercised “actual” control of that
portion of the premises where the plaintiff was injured, a tenant will not be
held liable for the plaintiff’s injuries where the lease does not confer a right of
control. In Both v. Harband (1958) 164 Cal.App.2d 743 (Both), also cited with
approval by Alcaraz, supra, 14 Cal.4th at p. 1159, the plaintiff, while walking
on a sidewalk, was injured by a piece of material that fell from the exterior
wall of a building, and she brought action against the owner and tenants of
the building. (Both, supra, at p. 745.) The trial court instructed the jury that
9
the tenants owed the plaintiff a duty of care to maintain the premises in such
a condition that they would not become dangerous to travelers outside the
building. (Id. at p. 748.) Our colleagues in Division Two of this District
reversed because the lease conferred no right of control upon the tenants over
the building’s exterior. (Ibid.) The appellate court further found, however,
that there was evidence that the tenant had made alterations to the front of
the building, had installed a sign upon it, and had contracted for the periodic
cleaning of the windows. (Ibid.) The court held that this evidence warranted
submission to the jury of the question whether the tenants “in fact exercised
control over the portion of the building whose defective condition caused [the
plaintiff’s] injury.” (Ibid.)
In sum, Alcaraz, Johnston, and Both show that to establish a tenant’s
duty of care where the lease does not confer upon him or her a right to control
that portion of the land that caused the plaintiff’s injury, there must be a
showing that the tenant took some affirmative action to assume
responsibility for the safe condition of that portion of the land. (See
Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200 (Contreras) [finding
that under Alcaraz, “control” requires a showing “that the defendant took
affirmative action to preclude or limit the . . . landowner’s control of, or
ability to control, its own property” or of a “ ‘dramatic assertion of a right
normally associated with ownership or at least . . . possession’ ”].)
2. Roger-McKeever Did Not Control the Walkway.
Roger-McKeever argued in the trial court, as she does here, that she
was not liable for Moses’s injuries because they occurred on the walkway and
walkway steps outside the condominium she leased, and she was not
responsible for repairing or maintaining the walkway. Her supporting
declaration stated that she leased the condominium from the owners, that
10
she had “no maintenance obligation for any areas outside the walls of the
condominium, including the entryway steps[,]” and that she “had nothing to
do with the design or construction of the entryway or the entry steps” and
had “no involvement in any aspect of the maintenance and[/]or repair of any
walkways or steps outside of the condominium [she] lease[s] from the
owners.” There was also evidence that she was “frustrated . . . that her
landlord had not been responsive in repairing the [porch] light.” Moses did
not dispute those facts or present conflicting evidence.
On appeal, Moses does not contend that Roger-McKeever owned the
walkway, that her lease conferred upon her a right to maintain and repair
the outside lighting or the walkway steps, or that she assumed responsibility
for the safe condition of the walkway. As discussed below, Moses’s primary
argument is that despite Roger-McKeever’s lack of control over that area,
Roger-McKeever owed her a duty of care because Roger-McKeever “impliedly
adopted” the walkway by inviting Moses to her condominium. Nonetheless,
Moses briefly makes two arguments regarding the issue of Roger-McKeever’s
control over the walkway which we address and reject in turn.
First, Moses contends that Roger-McKeever had control over the
walkway, steps, and lighting because “she directed those she invited to the
premises to use the steps and walkway in question, entitling invitees to
consider it safe.” But the evidence shows only that Roger-McKeever invited
Moses to her condominium. There is nothing in the record that demonstrates
that Roger-McKeever took affirmative action to “preclude or limit” the
owners’ ability to remedy the dangerous conditions in the walkway, or to
assert a “ ‘right normally associated with ownership . . . .’ ” (Contreras,
supra, 59 Cal.App4th at p. 200.) Under Alcaraz and Contreras, we thus
cannot conclude that Roger-McKeever had control over the walkway merely
11
because she invited guests to her condominium, and those guests used the
walkway to access her condominium. (See Hamilton v. Gage Bowl, Inc.
(1992) 6 Cal.App. 4th 1706, 1713 [“ ‘An invitor may be liable for an injury,
whether it occurs on his property or on a common passageway or on an
adjacent sidewalk or street being used for his special benefit if, and only if,
the injury is caused by a dangerous condition, or unreasonable risk of harm,
within the invitor’s control’ ”].) 2
Moses next argues that Roger-McKeever had control over the entryway
because she could have taken certain actions to prevent Moses’s fall,
including posting a warning sign, leaving out a portable lamp, and/or
rescheduling the meeting for daytime. This argument lacks merit. To
establish a duty of care under Alcaraz, it is insufficient to speculate that
Roger-McKeever could have taken certain actions to prevent injury to Moses
without showing that Roger-McKeever had actual control over the area where
the injury occurred. “The mere possibility of influencing or affecting the
condition of property owned or possessed by others does not constitute
‘control’ of such property.” (Donnell v. California Western School of Law
(1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine
the general rule that a defendant is not liable for failing to protect the
2 Moses relies on Hassaine v. Club Demonstration Services, Inc. (2022)
77 Cal.App.5th 843 (Hassaine) and Beauchamp v. Los Gatos Golf Course
(1969) 273 Cal.App.2d 20 (Beauchamp) in this context. We discuss both cases
in greater detail below. For our purposes here, it is sufficient to state that
neither Hassaine nor Beauchamp address the issue of whether a defendant
had control over land he or she did not own or possess for purposes of
establishing a duty of care.
12
potential victim if he or she did not contribute to creating the risk. (Brown v.
USA Taekwondo, supra, 11 Cal.5th at p. 214.) 3
As support for her argument, Moses relies on language in Public
Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 378, that she
claims defines “control” as the “ ‘power to prevent, remedy, or guard against’ ”
a dangerous condition, and she argues that Roger-McKeever had control over
the walkway under this definition because a warning or a portable lamp
could have prevented or guarded against the allegedly dangerous conditions.
The language quoted by Moses, however, is from Low v. City of Sacramento
(1970) 7 Cal.App.3d 826 (Low), and Low does not stand for the proposition
that a party who has no authority to remedy a dangerous condition has a
duty of care to potential victims if he or she can take other actions to protect
them against the dangerous condition. Rather, it concerned a plaintiff
injured in a water-filled depression in a parking strip located outside a
hospital owned and operated by the county. (Id. at p. 829.) The plaintiff
brought her action against the city and the county, and the trial court
instructed the jury that the strip was owned by the city and controlled by the
county. (Ibid.) On appeal, the county argued that the judgment against it
should be reversed. (Ibid.)
In considering whether the county “owned or controlled” the parking
strip for purposes of Government Code sections 830 and 835, the statutes
governing a public entity’s liability for dangerous conditions on its property,
the appellate court held that “[w]here the public entity’s relationship to the
3There are exceptions to this rule that are inapplicable here, such as
when the defendant and the plaintiff are in a special relationship or when the
defendant “ ‘undertake[s] to come to the aid of another[.]’ ” (Brown v. USA
Taekwondo, supra, 11 Cal.5th at p. 215.)
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dangerous property is not clear, aid may be sought by inquiring whether the
particular defendant had control, in the sense of power to prevent, remedy or
guard against the dangerous condition; whether his ownership is a naked
title or whether it is coupled with control; and whether a private defendant,
having a similar relationship to the property, would be responsible for its safe
condition.” (Low, supra, 7 Cal.App.3d at pp. 833–834.) Although the city had
an easement in the parking strip, the court found that “[l]ike a private
abutting owner,” the county had control over the strip based on evidence that
it maintained the grassy surface of the strip, and “[i]n this activity it was
subject only to the exercise of the city’s control as owner of the public
easement.” (Id. at p. 834.) The court affirmed the judgment against the
county based on its finding that the county had the power to both prevent the
deterioration of the strip and to remedy it. (Ibid.) Low is therefore consistent
with the standard for control set forth in Alcaraz, requiring evidence that the
defendant took affirmative action to assume some responsibility for the
condition of the area of injury. Here, there is no evidence that Roger-
McKeever had taken any affirmative actions creating in her the power to
prevent or remedy the alleged defects in the walkway or outside lighting.
Therefore, Moses has not shown that there is a triable issue of material
fact demonstrating that Roger-McKeever owned, possessed or had control of
the walkway, steps, or lighting for purposes of establishing a duty of care.
3. Implied Adoption under Hassaine
Unable to establish Roger-McKeever’s actual control over the walkway,
Moses asserts that Roger-McKeever nevertheless owed her a duty of care
because she “impliedly adopted” the entryway by inviting Moses to use it to
reach her condominium. As support for this argument, Moses cites Hassaine,
supra, 77 Cal.App.5th 843. There, the plaintiff slipped and fell on a slippery
14
substance while shopping at a Costco warehouse. (Id. at p. 846.) She sued
Costco and Club Demonstration Services (CDS), an independent contractor
that operated food sample tables within the store. (Id. at pp. 846–847.) The
trial court granted CDS’s motion for summary judgment, finding that CDS
did not owe the plaintiff a duty of care because CDS’s contract with Costco
limited its maintenance obligations to a 12-foot perimeter around each
sample table, and the plaintiff’s fall occurred outside that perimeter. (Id. at
p. 847.)
The Fourth District reversed, finding that the trial court erred as a
matter of law in concluding that the agreement between Costco and CDS
limited the scope of CDS’s duty of care. (Hassaine, supra, 77 Cal.App.5th at
p. 849.) The court acknowledged that defendants generally do not have a
duty of care where they did not contribute to the risk that the plaintiff would
suffer the harm alleged. (Id. at pp. 851–852.) But it found that an exception
to this rule applied because a special relationship exists between a business
and their invitees, which gives rise to a duty of care by the business to
“ ‘those who are lawfully on the premises’ regarding risks that arise within
the scope of their relationship.” (Ibid.) The court held that “[i]rrespective of
control, [this duty] also extends to all property the proprietor impliedly
adopts and invites others to use.” (Ibid.)
Turning to the case before it, the court found that the “question before
us is whether CDS is part of the business enterprise–which by virtue of its
special relationship to its customers bears an affirmative duty to protect
them even if a third party created the peril–or is more akin to fellow Costco
shoppers–who would owe no duty to warn even if they saw the liquid on the
floor and could have prevented [the plaintiff’s] fall.” (Id. at p. 853.) The court
concluded that “it is readily apparent that CDS was part of the business
15
enterprise and thus owed Costco shoppers a duty of reasonable care to
provide a safe shopping facility.” (Ibid.) CDS argued that it did not exercise
“joint control” with Costco “to form a single business enterprise[,]” but the
court nevertheless concluded that CDS “owed a duty of care by virtue of its
special relationship with Costco customers.” (Id. at p. 853, fn. 6.) “By
positioning itself inside a Costco and offering product samples to Costco
shoppers traversing store aisles, . . . CDS impliedly adopted Costco’s premises
and invited its sample customers to use the Costco aisles.” (Id. at p. 856.)
The court thus reversed the order granting CDS’s summary judgment
motion. (Id. at p. 858.)
We have not found, and the parties have not provided, any cases that
extend Hassaine’s “impliedly adopted” rule to non-commercial contexts.
Moreover, even in cases involving a commercial enterprise, “control” is still a
required element where the business invitee was injured outside the business
premises. (See, e.g., Gray v. America West Airlines, Inc. (1989) 209
Cal.App.3d 76, 80, 83–84 (Gray) [airline that leased ticket counter had no
duty of care to passenger that tripped and fell in common concourse area
adjacent to ticket counter because the airline had no control over the
concourse area]; Steinmetz v. Stockton City Chamber of Commerce (1985) 169
Cal.App.3d 1142, 1146 (Steinmetz).) In Steinmetz, the decedent was fatally
stabbed in a parking lot after attending a mixer hosted by the defendant
business organization on its business premises. (Id. at p. 1144.) The
defendant did not own, possess, or control the parking lot, and so the Third
District found that the defendant did not owe any duty of care to the decedent
while she was in the parking lot. (Id. at p. 1147.) The plaintiffs contended
that the parking provided by the defendant was inadequate in light of the
number of people it invited to the mixer, and therefore the defendant should
16
have foreseen that invitees would be forced to park in the nearby parking lot,
and it had a duty to insure safe ingress and egress to its premises. (Ibid.)
The court disagreed that the defendant had such a duty, finding that it would
be “impossible to define the scope of any duty owed by a landowner off
premises owned or controlled by him.” (Ibid.)
Here, Moses argues that to impose a duty of care in this case, it is
sufficient under Hassaine that Roger-McKeever gave her address to her
invitees “without any other information about access to the premises”
because it “would reasonably lead an invitee or visitor to approach the
premises via the entryway . . . believing it is reasonably safe to use.” But this
case is closer to Gray and Steinmetz than to Hassaine. Like Gray and
Steinmetz, the dangerous conditions here did not result from activities
carried out in the course of defendants’ commercial enterprise on the business
premises, facts that were key to the Hassaine court finding a duty of care.
Additionally, Moses has not shown that the allegedly dangerous conditions
arose in the scope of a special relationship between her and Roger-McKeever
such that Roger-McKeever had an affirmative duty to protect her against
risks of harm that Roger-McKeever did not contribute to or create. (See
Melton v. Boustred (2010) 183 Cal.App.4th 521, 536 [finding that plaintiffs
did not allege facts supporting existence of any special relationship between
homeowner and plaintiffs, who were homeowner’s guests].) Imposing a duty
of care in this case simply because Roger-McKeever invited Moses to her
condominium, would essentially create a rule making all tenants responsible
for hazardous conditions in surrounding public spaces, even when such
spaces are not under their control. We cannot conclude on these facts that
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Roger-McKeever had a duty to protect Moses from dangerous conditions she
did not create on land she did not own or control. 4
In sum, a residential tenant having no ownership or control over
common areas leading to the tenant’s dwelling place generally has no duty of
care to protect invitees against the dangerous condition of those areas.
Because Moses has not shown that a triable issue of material fact exists
regarding Roger-McKeever’s ownership or control over the common walkway,
walkway steps, and lighting, she has not established error in the trial court’s
finding that Roger-McKeever did not owe Moses a duty of care under Civil
Code section 1714.
C. Negligence Per Se
“ ‘Under the doctrine of negligence per se, the plaintiff “borrows”
statutes to prove duty of care and standard of care.’ ” (David v. Hernandez
(2014) 226 Cal.App.4th 578, 584.) Citing the declaration of her expert
mechanical engineer, Moses points out that the walkway steps violated
applicable building codes. Roger-McKeever argues, as she did in the trial
court, that Moses’s expert evidence does not raise a triable issue of material
fact as to whether Roger-McKeever can be held liable for negligence per se
based on the alleged building code violations. 5 Moses does not invoke the
4The other case relied upon by Moses–Beauchamp, supra, 273
Cal.App.2d 20–is inapposite. In that case, the area of injury, a concrete walk,
was owned and possessed by the defendant business, and the issues before
the court were whether the plaintiff had assumed the risk of walking across
the concrete sidewalk in spiked golf shoes and whether the danger of doing so
was obvious and well-known to her. (Id. at pp. 34–35.)
5Roger-McKeever also argues that the trial court erred in overruling
her objections to the admissibility of this expert evidence. However, we do
not have those objections in the record before us, so we have no way of
determining whether the trial court abused its discretion. In any event, the
expert evidence–which concerns the nature of the alleged defects in the
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doctrine of negligence per se in her opening brief, but she suggests in her
reply brief that under this doctrine, the building code sets a standard of care
separate from the common law duty of care. We do not consider issues raised
for the first time in an appellant’s reply brief. (Habitat & Watershed
Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6
[“Arguments presented for the first time in an appellant’s reply brief are
considered waived”].)
In any case, we agree with Roger-McKeever that Moses has not raised
a triable issue of material fact showing that the negligence per se doctrine
applies here. “While courts have applied negligence per se to building code
violations, it has only been applied in limited situations[,]” such as where the
defendant “played a professional role in the design or construction of the
building.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1212 [finding the
doctrine of negligence per se did not apply because the defendants “were
simply homeowners and did not take part in any aspect of the design or
construction of the garage step area” at issue].) Roger-McKeever’s
declaration satisfied her initial burden of showing that she played no role in
the design or construction of the steps. Moses presented no evidence to the
contrary, and thus she did not raise a triable issue of material fact regarding
the applicability of negligence per se.
D. Remaining Contentions under Rowland
Finally, both parties contend that the duty of care factors set forth in
Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) support their
respective positions on the issue of whether Roger-McKeever owed Moses a
walkway steps and the issue of causation–does not affect the outcome of this
appeal because we find that Roger-McKeever did not owe a duty of care to
Moses in connection with the walkway.
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duty of care in connection with the walkway. 6 The Rowland court identified
several factors that, when balanced together, may justify a departure from
the general duty of care embodied in Civil Code section 1714: “the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff 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 consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69
Cal.2d at p. 113.)
Moses argues that application of the Rowland factors shows that we
should impose a duty on tenants to “warn and prevent by modest,
inexpensive steps that would not intrude on others’ duty to repair and/or
maintain the entryway to a tenant’s abode when the defendant is on actual or
constructive notice of a dangerous condition.” However, Rowland is not an
independent source of duty but is merely a “guide to whether to create an
exception to a duty otherwise established.” (Brown v. USA Taekwondo,
supra, 11 Cal.5th at p. 219; see Soto v. Union Pacific Railroad Co. (2020) 45
Cal.App.5th 168, 181, fn. 7 [“In light of our holding that Union Pacific had no
duty to make the premises safe, we do not address the Rowland factors,
which apply when a statutory duty of care is found to exist and the question
6 Rowland “was partially superseded by statute on a different issue as
stated in Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 722, . . .
disapproved on a different issue in Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 853 . . . .” (Smith v. Freund (2011) 192 Cal.App.4th 466, 473, fn.
5.)
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presented is whether public policy supports a departure from that general
duty of care”].) Moses has not shown that there is an independent basis for
imposing on Roger-McKeever a duty to protect against the dangerous
condition of the walkway. Thus, the considerations articulated in Rowland
cannot be applied to establish a duty of care here, and the trial court acted
properly in granting Roger-McKeever’s motion for summary judgment.
III. DISPOSITION
The judgment is affirmed. Roger-McKeever to recover her costs on
appeal.
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SWOPE, J. ∗
WE CONCUR:
MARGULIES, ACTING P.J.
BANKE, J.
A164405P
∗
Judge of the San Mateo County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
22
Alameda County Superior Court
Honorable Delbert C. Gee
Counsel:
Law Offices of John T. Shreiber and John T. Schreiber for Plaintiff and
Appellant.
Donahue Davies, Michael E. Myers and William K. Blakemore for Defendant
and Respondent.
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