Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 468547
Pollak, J.
Paul Ruegg was injured while attempting to enter his rented apartment by traversing a second story exterior railing four inches wide leading to his back door when he accidentally fell and injured himself. He sued the owners of the building. Ruegg contends the court erred when it granted summary judgment in favor of the owners on the ground that they had no duty to take precautions that could have prevented this accident. We agree with the trial court that Ruegg’s use of the outer railing as a means of access to his apartment was unforeseeable and that the owners of the property were under no duty to take the precautionary measures that Ruegg suggests. We shall therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, Ruegg rented unit #103, a second-story apartment, in the Oceanview Apartments. After returning home from a bicycle ride in October 2005, Ruegg discovered he locked himself out. When he could not contact the resident manager or his next door neighbor in unit #104, Ruegg decided to climb up to the back deck and enter his apartment through the sliding glass door. At the time of the accident, Ruegg was 49 years old and weighed 240 pounds. He climbed up a metal ladder that was permanently attached to the wall in the rear courtyard of the apartment complex. The base of the ladder was located in a common area open to any resident of the building, and the ladder was unchanged since its installation when the building was constructed in the early 1970’s. Ruegg emphasizes that “access to the ladder is not blocked in any manner at its base, ” “[t]here is no warning or sign located near the ladder informing tenants of any restrictions on using the ladder, ” and tenants “have not been informed of any restrictions as to the use of the ladder.”
At the top of the ladder, Tom McCarthy, the tenant in unit #101, had installed a lattice-work privacy screen around the deck at the rear of his apartment. The lattice-work was installed during the 1980’s with the permission of the building’s owners at that time. The lattice work was attached to a frame constructed of 2 x 4 boards sitting on the top of the deck railing, so that about four inches of the railing was exposed and accessible on the outside of the privacy screen. Copies of photos of the deck and the privacy screen are attached as Appendix A to this opinion.
Ruegg climbed the ladder to the second story behind McCarthy’s unit and stood on the railing. He traversed the railing on the outside of the privacy screen in order to reach the deck of his own apartment, and held the 2 x 4 frame to balance himself. Before he could reach the end of the lattice work, it broke off in Ruegg’s hands. He fell to the ground and was seriously injured.
Ruegg provided evidence that he and others previously used the ladder to gain entry to the building along the same route he used when he fell, but there was no evidence that this use was ever brought to the attention of the current owners. When McCarthy was the resident manager of the building in the 1990’s, he saw one of Ruegg’s guests use the same route to enter Ruegg’s apartment. McCarthy “told [the guest] he had no business to be doing what he was doing, ” although he could not remember ever speaking to Ruegg about it.
Ruegg’s expert, a former deputy fire chief and code enforcement hearing officer, stated that in his “professional experience many owners of rental apartments have tenants who make use of available emergency exits for purposes of gaining entry or access to their apartment units. In my years of dealing with this issue there are many available options to an owner who wants to prohibit or limit the tenants’ use of those exits such as retractable ladders or stairs, folding ladders, alarms, signs and contractual restrictions contained in rental/lease agreements.” Although the trial court sustained the owners’ objection to another part of the declaration, the court apparently did not rule on the owners’ objection to the statement regarding the general common use of emergency exits by tenants to gain access to their apartments. Ruegg’s expert safety engineer also opined that since the ladder was “placed in a common area used by all tenants, ” it was his opinion “from Human Factors and [his] own personal site visit that it was completely foreseeable that a reasonable person would use the subject ladder for access or egress.”
The defendants purchased the building in August 2002, and were never specifically informed by the former owners or McCarthy that tenants used the ladder and traversed the deck railing to access their apartment units. Ruegg last used the ladder to access his apartment approximately two years before his 2005 accident, and he did not know whether anyone else used the route between 2003 and 2005. Ruegg explained he had not used the ladder recently because the residents of unit #104 normally allowed him to pass through their apartment to their back deck, where he climbed over a “short wall” to access his own deck and backdoor.
As originally constructed, there were short walls serving as partitions that separate the decks of the second-story apartments that sloped to approximately three feet high where they met the railing. According to Ruegg’s expert, Gary Bard, “their sloping design would enable a person to easily straddle the partitions at their lowest point....”
Ruegg’s complaint alleged premises liability and negligence against the owners and managers of the building for their failure to maintain, repair, warn of, or impede access to the ladder and railing which they knew or should have known tenants used “from time to time” to gain access to their apartments, and was in a dangerous condition. The defendants moved for summary judgment on the grounds they did not owe Ruegg a duty of care, and Ruegg could not prove causation because his injuries were caused solely by his own recklessness.
Ruegg later dismissed his neighbor McCarthy, who was the resident manager for the former owners.
The court concluded that “the use of the deck railing top by [Ruegg] was not reasonably foreseeable... [and that] [d]efendants did not owe [Ruegg] a legal duty of care to provide him with a safe passageway on top of the deck railing or to warn him of the danger of engaging in that maneuver on top of the deck railing twenty (20) feet above concrete.” The court also sustained defendants’ objection to the opinion of Ruegg’s expert regarding the design of the sloping walls on the decks between each apartment, and granted summary judgment for defendants. Ruegg timely appealed from the judgment.
DISCUSSION
We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) A defendant moving for summary judgment has the initial burden to show that a cause of action lacks merit because one or more of its elements cannot be established or it is subject to an affirmative defense. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, at p. 850.) In such circumstances, we review the evidence in the light most favorable to the party opposing summary judgment and construe opposing submissions liberally, while we strictly construe the showing by the moving defendants. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
Defendants argue that as a matter of law there can be no liability in this case because there was no duty upon them as property owners to prevent Ruegg’s access route or ensure its structural integrity. They also argue that even if there was some duty upon them to take action, their inaction was not the proximate cause of Ruegg’s injuries. In a premises liability case like this one, an owner or possessor of property has a legal duty to act reasonably in the management of the property in view of possible injury to others. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civ. Code, § 1714, subd. (a).) To determine whether a duty arises in any particular case requires a balancing of the forseeability of a specific risk of harm against the burden that would be imposed on the property owner to eliminate or mitigate that risk. (Vasquez v. Residential Investments, Inc. (2004) 118 CalApp.4th 269, 279.) “ ‘Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection.’ [Citations.] The existence of a duty of care is a question of law to be resolved by the courts.” (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1373.)
Balancing these interests requires consideration of three factors. “First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court’s determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the... conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.” (Vasquez v. Residential Investments, Inc. supra, 118 Cal.App.4th at p. 285, fns. omitted.)
Ruegg alleges a range of measures defendants could have taken that would have prevented his injury. He says the privacy screen and its wooden frame were decayed and that defendants should have inspected, repaired or maintained it in a condition that would have permitted his safe passage. He also claims they could have posted a warning that access to the building by climbing up the ladder and traversing the railing was unsafe, or they could have prohibited such access. We shall assume that the preventative measures Ruegg suggests would not be unduly burdensome or expensive, nor that they would impose an unwarranted social burden on the defendants. Nonetheless, Ruegg’s claim falters on the issue of foreseeability.
“ ‘ “[T]he question of foreseeability in a ‘duty’ context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]” [Citation.]’ [Citation.] Thus, while foreseeability with respect to duty is determined by focusing on the general character of the event and inquiring whether such event is ‘ “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct” ’ [citation], foreseeability in evaluating negligence and causation requires a ‘more focused, fact-specific’ inquiry that takes into account a particular plaintiff’s injuries and the particular defendant’s conduct.” (Laabs v. Southern California EdisonCo. (2009) 175 Cal.App.4th 1260, 1273.)
The general character of the event causing injury in this case was a fall from a building railing made accessible by a permanent ladder leading up to the second story from a common area open to all tenants of the building. Ruegg emphasizes that the ladder was readily accessible and was used by various tenants and guests in the past, and the declaration of one of Ruegg’s experts that tenants commonly make use of such routes to gain entry to their apartments. The problem with this analysis, however, is that the use of the ladder was not the cause of Ruegg’s injuries. Ruegg was not injured while climbing the ladder and there is no reason to believe he would have been injured had he simply climbed the ladder and entered the gate at the top of the ladder leading to his neighbor’s porch. Ruegg was injured because he attempted to reach his back door by edging along the adjacent four-inch ledge on the second floor of the building, well above the concrete below. This ledge quite obviously was not an intended means of access to his apartment and, simply because it was physically possible to reach the apartment in that manner, there was no reason for the owner to anticipate that a tenant would attempt to do so. The risk inherent in that course was obvious. Unlike the situation in Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, Ruegg was not compelled by his employer to undertake such a risk and there was no “practical necessity of encountering the danger.” (Id. at p. 121.)
Numerous cases establish that there is no duty of an owner to take measures to prevent an injury from such an unintended and unforeseeable use of the owner’s property. (See Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 1286-1288 [climbing a fence that was properly constructed to prevent the public from falling off the edge of a parking ramp]; Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 556 [stepping on a bicycle seat to climb a chain link fence to pick oranges on the other side]; Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1464 [scaling a freeway fence to run across the traffic]; Dominguez v. Solano Irrigation Dist. (1991) 228 Cal.App.3d 1098, 1103-1104 [scaling an eight-foot wall designed to restrict access to a canal]; Warchol v. City of Chicago (1979) 393 N.E.2d 725, 729 [walking along the top of a fence constructed of metal pipes on city property]; Saba v. Jacobs (1955) 130 Cal.App.2d 717, 718-719 [playing on a portable ladder on a neighbor’s property (at a time when premises owners’ liability to social visitors was limited to infliction of wanton or willful injury)]; Smelser v. Deutsche Evangelische, etc. (1928) 88 Cal.App. 469, 472-475 [climbing a ladder to satisfy one’s curiosity in an area not open to common use]; Gillard v. Hoffman (1918) 103 Kan. 572 [making use of a fire escape to conduct business as a janitor].)
Several cases involve statutory liability for dangerous conditions of public property, where a plaintiff must show the condition creates a hazard when used with due care. (See Biscotti v. Yuba City Unified School Dist., supra, 158 Cal.App.4th at pp. 558-559; Schonfeldt v. State of California, supra, 61 Cal.App.4th at pp. 1465-1466; Dominguez v. Solano Irrigation Dist., supra, 228 Cal.App.3d at pp. 1102-1103.)
As in Edwards v. California Sports, Inc., supra, “one can conjure up all manner of extreme measures which might have prevented this particular injury but that is not the issue. The fundamental inquiry is whether the duty of a landowner to exercise reasonable care in preventing injury to persons on the premises [citation] required such measures.” (206 Cal.App.3d at p. 1287.) “There is a limit as to how far society should go by way of direct governmental regulation of commercial and private activity, or indirect regulation thereof through the tort system, in order to protect individuals from their own stupidity, carelessness, daring or self-destructive impulses. [¶]... [D]id defendant’s duty of due care require it to design and construct its building in a manner that would thwart plaintiff’s derring-do? We think not.” (Id. at p. 1288.)
DISPOSITION
The judgment is affirmed.
I concur: McGuiness, P.J.
SIGGINS, J.
I respectfully dissent. This case is very different than those relied upon by the majority. This is not a case where a drunken plaintiff was injured trying to climb a barrier installed to insure his safety. (See Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284.) Instead, Ruegg fell from a position of peril that was readily accessible to all from the fixed ladder located in the courtyard at the rear of the building.
The majority disagrees with my analysis because Ruegg did not fall from the ladder, but instead fell while trying to traverse the ledge on the railing of his neighbor’s balcony. The majority says there is no reason a property owner would anticipate a tenant locked out of his apartment would edge along the four-inch rail in order to get in. I differ.
To me the question is answered by “focusing on the general character of the event and inquiring whether such event is ‘ “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” ’ ” (Laabs v. Southern California EdisonCo. (2009)175 Cal.App.4th 1260, 1273.) My view through that lens would lead me to permit this case to proceed before the trier of fact.
My view is informed by the Restatement Second of Torts, section 360: “A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (Rest.2d Torts, § 360, p. 250.)
The comments to section 360 address the issue of a lessee who proceeds in the face of a known danger. “The rule stated in this Section may also apply even though the person injured, whether he be the lessee himself or a third person, has knowledge of the existence of the dangerous condition. His knowledge may put him in contributory fault.... But unless the danger is so apparent and so great that it is unreasonable for him to encounter it in view of the purpose of his use, or unless knowing the danger he fails to exercise that caution which a reasonable man would exercise under the same circumstances, the lessor remains liable to him notwithstanding his knowledge of the existence of the condition.” (Rest.2d Torts, § 360, com. b, p. 251.)
In considering the general foreseeability of Ruegg’s injury for purposes of duty analysis, I would not conclude as a matter of law that the danger presented by his chosen route was so apparent or great that it was unreasonable for him to encounter it. Instead, I would conclude there was a legal duty on the part of defendants to take precautions that someone would not use the fixed ladder in the rear courtyard to gain entry to the building.
I want to “stress, however, that [I would conclude] the injury ‘foreseeable’ only as it pertains to a general duty of care. ‘[A] court’s task-in determining “duty”-is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citations.] Thus, the fact finder is still free to find that the particular plaintiff’s injury... was not foreseeable in light of this particular defendant’s conduct.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 394, fn. omitted.)
Whether the defendants owed Ruegg a duty of care to prevent his injury in context seems to me a question of fact. I would reverse the summary judgment.