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Sidewalk Trip & Falls – Business Beware

Posted on: November 6th, 2020

By: Robert Bazzo

Recently the California Court of Appeal, Second Appellate District (Division Two) heard the case of Jose Luis Lopez, Jr. v. City of Los Angeles and Wally’s Wine & Spirits, Et Al. (B288396.) The case involves a pedestrian (Plaintiff Lopez) who stepped on what looked like a puddle, but which ended up being a four-inch-deep pothole. As a result, he dislocated his ankle, tore three ligaments, and fractured two bones; repairing the damage necessitated two rounds of surgery.

The pothole was located where the street gutter meets the lip of a driveway in front of  the business known as Wally’s Wine & Spirits in the City of Los Angeles. The pothole was caused by deterioration of the asphalt due to regular use of the driveway by vehicles and due to water flowing in the gutter.

Plaintiff filed suit against the City of Los Angeles and Wally’s Wine & Spirits for negligence and premise liability.  In general terms, the owner or occupier of private property has a “duty” to exercise reasonable care “to maintain [its property] . . . in a reasonably safe condition” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, but that duty does not generally extend to the publicly owned sidewalks and streets abutting the property unless the owner or occupier has “exercise[d] control over [that publicly owned] property” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-1158; Martinovich v. Wooley (1900) 128 Cal. 141, 143.

So, when does the owner or occupier of private property exert control of abutting, publicly owned property?

As a threshold matter, the owner or occupier must take some “affirmative” or “positive” action toward the abutting, publicly owned property. (Selger v. Steven Bros. (1990) 222 Cal.App.3d 1585, 1590-1591.)  Thus far, courts have identified two situations in which an owner or occupier of private land has engaged in affirmative or positive action sufficient to hold them liable for a hazard located on abutting, publicly owned property: (1) when the owner or occupier has created that hazard (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830), i.e. the re-configuration is done (a) for the owner or occupier’s own “special benefit” and (b) in a manner that causes the public property to “serve a use independent of and apart from the ordinary and accustomed use for which [that property (e.g., a sidewalk) was] designed.”  The second affirmative or positive action is (2) treating property as its own.  Thus, even if a hazard located on publicly owned property is created by a third party, an abutting owner or occupier of private property will be held liable for injuries caused by that hazard if the owner or occupier has “dramati[cally] assert[ed]” any of the “right[s] normally associated with ownership or . . . possession” by undertaking affirmative acts that are consistent with being the owner or occupier of the property and that go beyond the “minimal, neighborly maintenance of property owned by another.” (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200.)  

At trial, there was no substantial evidence to support a finding that Wally’s created the pothole. There was no evidence presented at trial that the driveway apron or gutter were “constructed” or “altered” by Wally’s, by any of its predecessors in interest, or by the City at its (or their) behest. There was also no evidence that the sloped driveway or the gutter “serve[d] a[ny] use independent of and apart from the ordinary and accustomed use for which [driveways and gutters] are designed.”  Moreover, there was no evidence that the sloped driveway in this case deviated in any way from the standard construction of driveways and no evidence that Wally’s used the driveway for vehicles other than ordinary cars and vans.  There was also no evidence that the gutter running in front of Wally’s did anything beyond its “ordinary and accustomed use” of carrying away water, for which gutters are designed, and no evidence that Wally’s deposited more water into the gutters than any other property owner along the subject street.

Based on all of the above, the Court of Appeal held that the commercial business leasing the property and the driveway services did not exercise control over the location of the pothole (so as to create a duty of care to passersby) when the business has done no more than put the driveway and gutter to their “ordinary and accustomed” uses. Therefore, the trial court was correct in granting judgment notwithstanding the verdict to overturn a jury verdict that found the business partially liable for the pedestrian’s injury.

If you have questions or would like more information, please contact Robert Bazzo at [email protected].

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