Garrett A. Smee and Lawrence S. Zucker II | Haight Brown & Bonesteel
On May 5, 2023, the California First District Court of Appeal, Division One, issued an opinion in Moses v. Roger-McKeever (A164405), holding that a condominium tenant owes no duty to a social guest using a walkway that leads to the unit.
Eleanor Moses fell on a walkway outside a condo rented by Pascale Roger-McKeever. Moses would not have used the walkway but for Roger-McKeever’s invite to a small gathering for members of a political activist group. Upon entering the condo for the event that night, Moses brought to Roger-McKeever’s attention the poor lighting in the entryway. Roger-McKeever apologized, and stated that her landlord had delayed repairing the porch light. The accident supposedly happened on a short walkway that had three steps leading away from a street sidewalk. Supposedly, Moses tripped on the second step while leaving the social gathering because of the poor lighting.
Moses first argued that Roger-McKeever owed a duty of care because Roger-McKeever “impliedly adopted” the sidewalk by inviting Moses to the gathering, knowing that Moses would need to use the sidewalk to come and go from the event. Moses also argued that Roger-McKeever, at the very least, had a duty to warn. The Court rejected both arguments, affirming the trial court’s decision to grant summary judgment: “A defendant cannot be held liable for the defective or dangerous condition of property which it does not own, possess, or control.” (Citing Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 134.) The Court also summarized prior cases to determine that “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.” (Citing Contreras v. Anderson (1997) 59 Cal. App. 4th 188, 200.) The Court also analogized to commercial settings, where businesses owe a duty to patrons to protect from danger even away from the business premises. The Court determined that businesses do in fact owe a duty in such settings because they have a “special relationship” with the patrons who they invite to their business premises. By contrast, Roger-McKeever simply invited Moses to a “small gathering” as an informal social host, and not for commercial profit. Moses and Roger-McKeever had no “special relationship.”
The Court reasoned: “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.”
The take away here is (1) courts impose a clear distinction between social host liability and the liability of commercial enterprises, and (2) a tenant has no duty to protect from danger away from her rented space, even if the tenant occasionally performs “minimal, neighborly maintenance of property owned by another.”
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