Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 04CECG01020, Alan M. Simpson, Judge.
Heiting and Irwin, James Otto Heiting and Jean-Simon Serrano for Plaintiff and Appellant.
Horvitz & Levy, Barry R. Levy and Felix Shafir; Goates & Piekut and Kevin Piekut for Defendants and Respondents.
OPINION
Levy, Acting P.J.
Appellant, Ernesto Salinas, was injured when, as a result of a traffic collision in an intersection, his automobile veered off the road and struck a gas meter. Flames erupted from the gas meter and burned appellant. This meter, owned by the Southern California Gas Company (Gas Company), was located on a County of Fresno (County) right-of-way. Respondents, W. Dale Bennett, Willis Bennett, and the W. Dale and Eleanor Bennett Revocable Living Trust, held title to the property through which the County’s right-of-way extended.
Appellant filed the underlying personal injury action against the driver of the other vehicle, the Gas Company, the County, and respondents. The trial court granted summary judgment in favor of respondents on the ground that they did not owe appellant a duty of care.
Based on a premises liability theory, appellant argues respondents, as the owners of the property where the foreseeably dangerous gas meter stood, owed him a duty of care to either move the gas meter away from the intersection or to suitably protect the meter from wayward vehicles by way of a barrier such as a guardrail. However, as discussed below, because respondents neither owned the gas meter nor had control over the County right-of-way, they did not have the right to cure the allegedly dangerous situation. Thus, respondents are not liable for appellant’s injuries. Accordingly, the judgment will be affirmed.
BACKGROUND
Respondents, W. Dale Bennett aka Willis Bennett, and his wife Eleanor, purchased a vineyard and house on the corner of Nebraska and Academy Avenues in 1960. When respondents purchased the property, a gas meter set assembly, installed in 1955, was located on the County’s public road right-of-way. This meter was a component of respondents’ residential gas service.
Nebraska and Academy are both rural two lane roads. At the intersection is a two-way stop for traffic traveling on Academy. Mature vineyards are on all four corners of this intersection.
The Gas Company replaces its meters every 15 years to ensure accuracy. At the subject location, this occurred in 1971 and 1997. The Gas Company placed guard posts around this meter to protect it from vehicles traveling at low speeds, e.g., tractors cultivating the vineyard.
The accident occurred when appellant, driving on Nebraska, entered the intersection at Academy. Nestor Aboytes, driving on Academy, “ran” the stop sign and the cars collided. The impact caused appellant’s car to veer off the road and hit the gas meter. The meter caught fire and appellant was severely injured.
Respondents moved for summary judgment on the ground that they owed no duty to appellant to protect him from the unforeseeable risk of being pushed into a gas meter as a result of a traffic accident. The trial court concluded that the alleged negligent acts, i.e., placing the meter near an intersection and failing to protect it from collisions with vehicles traveling on the roadway, were not under respondents’ control. Accordingly, the court granted respondents’ motion.
DISCUSSION
To prevail on this negligence action, appellant must show that respondents owed him a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of his injuries. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) This court must review the summary judgment de novo to determine whether respondents have shown, through the evidence adduced in this case, that appellant has not established, and cannot reasonably expect to establish, this prima facie case. (Id. at p. 768.)
However, respondents need only have negated one essential element of appellant’s case, notwithstanding factual conflicts on other aspects of the case. (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 514-515.) Therefore, a determination that respondents owed appellant no duty of care, an essential element of appellant’s negligence action, would be a complete defense. (Id. at p. 515.) Whether a duty of care exists is a question of law for the court. (Ibid.)
California law requires landowners to maintain land in their possession and control in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) Thus, a property owner has a duty to exercise ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. (Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 992-993.)
Nevertheless, duty is not an immutable fact of nature. Rather, it is only a shorthand expression of the sum total of public policy considerations that lead the law to protect a particular plaintiff from harm. (Scott v. Chevron U.S.A., supra, 5 Cal.App.4th at p. 515.) In order to determine the boundaries of the duty of care in any given case, the court must consider several factors, including “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 v. Christian (1968) 69 Cal.2d 108, 113.)
“The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis.” (Scott v. Chevron U.S.A., supra, 5 Cal.App.4th at p. 515.) However, foreseeability is not synonymous with duty, nor is it a substitute. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) To be liable for an alleged unsafe condition of land, the defendant must have the right to control the premises. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368.) In other words, before liability may be thrust on a defendant based on a dangerous condition on the land, the plaintiff must show that the defendant had the right and ability to cure the condition. (Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 661.) “[T]he right of supervision and control ‘goes to the very heart of the ascription of tortious responsibility .…’” (Sprecher v. Adamson Companies, supra, 30 Cal.3d at p. 369.)
Here, respondents did not own or have control over the gas meter itself. It was in place when respondents purchased the property and belonged to the Gas Company. Moreover, because the meter was on a high pressure gas line, the Gas Company’s tariff rules required that the meter be placed at the property line. The fact that the gas line and meter were later abandoned did not give respondents control over the meter at the time of the accident. Nevertheless, even if a defendant does not own or exercise control over the dangerous instrumentality, here the gas meter, that defendant still has a duty to take steps to protect persons from that danger if the defendant has control over the land where the instrumentality is located. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)
Relying on Alcaraz v. Vece, supra, appellant contends that, as the owners of the land, respondents were required to provide suitable protection for the meter. According to appellant, respondents could have easily placed a guardrail around the meter.
However, the gas meter was on the County’s public right-of-way. Such a right-of-way is a form of easement in that it grants use rights in the particular parcel to nonowners of the land. (Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301, 308.) Further, no person, including the owner of the land, may place or change an encroachment, such as a guardrail or wall, on the right-of-way without a written permit from the county road commissioner. (Sts. & Hy. Code, §§ 1450, 1460.) In fact, an owner who places such an encroachment on the unused portion of a highway easement without a permit is subject to criminal penalties and may be compelled by the county to remove the encroachment. (Sts. & Hy. Code, § 1460; People v. Sweetser (1977) 72 Cal.App.3d 278, 285.)
Thus, contrary to appellant’s position, respondents did not have control over the land. Because the gas meter was located on the County’s highway easement, respondents did not have the right to cure the allegedly dangerous condition. Accordingly, respondents owed no duty of care to appellant. In light of this conclusion, it is unnecessary to evaluate the remaining factors involved in a duty analysis, including whether the accident was foreseeable.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: Cornell, J, Hill, J.