– By Laurie F. Masotto, Esq. (originally published in January, 1998)

It is not uncommon for a property owner or a homeowners association, in connection with main-taining their property, to keep the adjacent public sidewalk clean, such as by sweeping, removing leaves and other debris, to enhance the appearance of the neighborhood. Fortunately, a recent case confirmed that this type of “neighborly maintenance” will not generally give rise to a duty on the part of such persons to warn against or prevent injuries occurring on that adjacent property.

In Contreras v. Anderson, decided by Court of Appeal in November, 1997, the issue was whether the owner’s periodic trimming of trees, gardening, sweeping, removal of trash on a planting strip and brick walkway on public property in front of their home, constituted an exercise of control over the property, so as to make the person exercising control liable for injuries occurring on that property, despite the fact the property was owned by another entity (i.e. the City).

The court found that the test for liability will be whether the activity constitutes “affirmative action so as to preclude or limit the landowner’s control or ability to control the property,” thereby making it fair and reasonable to hold the person exercising such control responsible to warn against or prevent injury from hazards on abutting property. A “notorious and open public display” of control is required, such as placement of markings/signs, enclosing the area with a fence to exclude access, or cutting down trees, as these activities are akin to ownership, versus mere maintenance. Another basis for liability is where the adjacent owner has altered part of the public property, and the alteration serves a use which is independent from ordinary usage and exclusively benefits such owner. Since the defen-dants’ activities here essentially were gardening and cleaning, no liability was found.

The Contreras Court distinguished the recent case of Alcarez v. Vece, which was outlined in Peters & Freedman’s 1998 Legal Guide. In Alcarez, the Court found the property owner exercised a sufficient degree of control so as to establish liability, where the owner had mowed the lawn and may have been aware of a broken cover on a meter box on which the plaintiff was injured. A petition for review of Contreras has been filed with the California Supreme Court, as these decisions seem to conflict. Look for an update in future newsletters.