court talk
Dog Attacks Can Bite Landlords
by Clifford E. Fried
Sheila Stone v. Center Trust Retail Properties, Inc.
Just about every year, your apartment association modifies and improves its lease form. Hardworking lawyers and property management professionals diligently pour over recently published legal opinions and decisions from local judges to make sure that the lease form is up to date and the best it can be. Sometimes, a published opinion will force a change in the lease form.
In Sheila Stone v. Center Trust, the California Court of Appeal held that a commercial landlord had a duty to inspect the premises upon entry of the judgment of possession in an unlawful detainer action, including reasonable periodic inspections thereafter. The lease between the tenant and Center Trust expressly gave the landlord the right to inspect the premises if the tenant defaulted. While your association’s current lease form doesn’t talk about rights to inspect upon default, it does contain a general right of inspection for possible health risks, defects and code violations. In light of the Sheila Stone decision, lease forms may need revising.
Center Trust owned a retail mall in which Gumboz Creole Cajun Restaurant was a tenant. Center Trust filed an unlawful detainer action against its tenant for default in the payment of rent. The owner was successful in obtaining a judgment and a writ of possession. However, before the owner actually recovered possession, the tenant had one last party at the premises, during which time Sheila Stone slipped on water on the floor and fell, fracturing her ankle. Eight days later, the restaurant shut down and the owner took actual possession of the premises.
Stone sued the building owner and obtained a jury verdict of just under $400,000. In general, in order for a landlord to be liable for a third party injured on rented property, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition. Because landlords relinquish their possessory interests to their tenants, they are ordinarily not liable to their tenants’ guests and invitees for dangerous conditions that arise on the property after the tenant takes occupancy.
But in this case, the general rules of landlord liability to third parties didn’t apply. Because the lease between the tenant and Center Trust expressly gave the
landlord the right to inspect the premises if the tenant defaulted, the court held that a duty to inspect arose. The court ruled that it was an error for the trial court not to instruct the jury of the landlord’s duty to inspect. The case was remanded for a retrial on the issue of the landlord’s liability. On retrial, the parties would present evidence on whether a reasonable inspection upon entry of the judgment and any later inspections would have discovered the water on the floor.
The Court of Appeal reasoned that upon entry of judgment, a tenant’s incentive to maintain the property disappears because continued maintenance benefits only the landlord and “to protect the public, the incentive to maintain the property must not be an orphan abandoned by a tenant and ignored by a shortly reoccupying landlord.”
The court essentially created a new rule of law. Landlords now have a duty to inspect their properties once a judgment has been entered in an action to recover possession. This rule is important in places like San Francisco and Oakland where it can take several weeks for the sheriff to evict after a judgment is entered in an unlawful detainer action. Plus, eviction parties are common after tenants learn of the actual eviction date. Under the ruling of this case, landlords could be liable for guests who are injured at these parties.
Your apartment association will be reviewing its lease form to determine whether or not to delete the landlord’s general right to inspect. The purpose of the current language in the form is for landlords to avoid habitability claims. Absent a contractual right to inspect, landlords might not know about code violations or conditions in need of repair. With some additional drafting, it might be possible for landlords to minimize liability, both during the tenancy and after a judgment has been entered.
Coronado v. Cobblestone Village Community Rentals
Under many federal and state fair housing laws, disabled persons are afforded special rights. Those rights include the right to make reasonable modifications (physical changes) to a rental unit to make it accessible and useable by disabled persons. A landlord’s failure to allow a reasonable modification can lead to fines, penalties and more.
A question that many landlords have is: who must make, or pay for, the modifications or changes? Common modifications include installing grab bars in showers or baths, wheelchair ramps, higher toilets or changing door knobs to levered handles, or lowering cupboards in kitchens. Some of these changes can be significant and expensive.
In the case of Coronado v. Cobblestone Village, the Court of Appeal explored the boundaries of a residential landlord’s duty to accommodate a disabled tenant’s right to reasonable modifications. Coronado, a disabled man who used a wheelchair, rented an apartment at Cobblestone Village, a multiunit residential complex. A concrete sidewalk leading from Coronado’s apartment to the parking area ended in a raised curb with no access ramp for wheelchairs.
Coronado was injured when his wheelchair toppled over while his wife tried to maneuver it off of the raised curb. A lawsuit was filed against the landlord for violation of California’s Unruh Civil Rights Act and the Disabled Persons Act. On appeal, Coronado argued that the lack of a curb ramp was a structural barrier that denied him the right to full and equal access to a public accommodation and was, therefore, actionable under these acts.
The Court of Appeal examined the claim under the Unruh Civil Rights Act separate from the Disabled Persons Act. The court said that the Unruh Civil Rights Act applies to apartment complexes, but that the act doesn’t require any construction or modification whatsoever beyond what is otherwise required by other provisions of law. In other words, when pursuing the answer to the question of whether a particular structural modification is required in a given context, the Unruh Act looks to other provisions of law.
As to the Disabled Persons Act, the court said that the provisions of the act, by themselves, do not require that a business owner structurally modify his or her facilities. It held that to state a claim under the Disabled Persons Act, based upon a structural or architectural barrier, the existence of the barrier must be in violation of a separate provision of law relating to structural access standards.
So, what are these other laws upon which claims under the Unruh Civil Rights and Disabled Persons Acts depend? The California Legislature has enacted laws to give meaning to the public accommodations laws that prohibit discrimination against disabled persons by providing for standards for buildings constructed with public funds (Gov. Code § 4450 et seq.) and private funds (Health & Safety Code § 19955). Section 19955 is applicable to public accommodations or facilities defined as buildings, structures or improved areas used by the general public.
Cobblestone Village was constructed with private funds and because the walkway outside Coronado’s apartment is not a public facility, the court ruled that Health & Safety Code § 19955 was not applicable. The court noted that there was no evidence to suggest that the cement walkway outside Coronado’s apartment was an area used by the general public or that it was intended for use by the general public.
Many apartment complexes have leasing offices that could be considered public accommodations. On this point, the court ruled that leasing offices don’t convert the entirety of the apartment complex into a public accommodation.
Since the other provisions of law reviewed by the Court of Appeal didn’t require Cobblestone Village to install a curb ramp where Coronado fell, there could be no violation of the Unruh Civil Rights and Disabled Persons Acts. This case clarifies that while a tenant has a right to reasonable structural modifications, the right is limited.
Stephen Salinas v. Paolo Martin
In this dog bite case, the Court of Appeal ruled that a property owner may owe a duty of care to a hired contractor injured by another hired employee’s dogs. While this case didn’t involve a landlord’s obligation for his tenant’s dangerous dogs, it does provide a good summary of dog bite law for landlords. The issue in these cases is whether or not a property owner is liable for injuries caused by dogs on his or her property.
In Salinas v. Martin, the property owner hired a contractor to install a new foundation. The property owner gave the contractor permission to enter the yard at the property at any time to retrieve equipment or materials stored there. The owner had also hired men to perform weeding and gardening. The men doing the gardening owned two dogs, a pit bull terrier and a smaller pit bull-labrador mix. The owner allowed the men to keep their dogs loose in the fenced back yard and in a van kept on the property. The contractor observed the dogs and complained to the property owner about his fear of the dogs. Subsequently, the contractor went to the property to retrieve some of his materials. He was attacked by one of the dogs and repeatedly bitten.
In general, a landowner owes a duty of ordinary care not to cause an unreasonable risk of harm to others. This includes a duty to inspect property. If by the exercise of reasonable care the landlord would have discovered the dangerous condition, the owner is liable.
But, as we saw in the Sheila Stone case, rules have developed to moderate the landlord’s duty of care owed to third parties injured on the property as compared with the tenant who has possession and control. Thus, before liability may be thrust upon a landlord for a third-party’s injury, the landlord must have actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.
And in the context of dog bites, a landlord owes no duty of care to protect a third party from his or her tenant’s dog unless the landlord has knowledge of the dog’s dangerous propensities, and the ability to control and prevent the harm. Nor does a landlord have a duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal.
In Salinas v. Martin, there was no landlord-tenant relationship involved, and the property owner actually resided at the property where the dog attack took place. The owner wasn’t an absentee landlord with limited access to the property, and he didn’t surrender possession to a tenant. The court ruled that the owner owed a duty of care to his contractor under the facts of this case.
It would appear from this case, and the dog bite cases that came before it, that the key elements of property owner liability are control of the property and knowledge of the dog’s dangerous propensities. Where either the property owner has free access to the property or actually knows about vicious dogs on the property, there will be liability for dog attacks.
More and more tenants are taking in pit bulls and other dangerous breeds as “comfort pets,” claiming a right to do so under various laws that protect the rights of disabled persons. Future legal battles may determine whether or not a landlord’s duty to keep his or her property in a reasonably safe condition trumps a tenant’s right to keep a potentially dangerous comfort pet.
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is a partner with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2008 by Black Point Press. All rights reserved.