– By Laurie S. Poole, Esq. (originally published in Summer 2000)

A California Appellate Court recently determined that a homeowners association may have a duty to warn or protect third parties about dangerous conditions in sidewalks across its property, even when the sidewalk is not owned by the association. In the case of Alpert v. Villa Romano Homeowners Association, decided on May 31, 2000, Ms. Alpert tripped and fell on a sidewalk that was adjacent to the association’s property and sustained serious injuries. At her trial against the association, the trial court granted the association’s motion to have the case dismissed after Ms. Alpert presented her case-in-chief. Ms. Alpert appealed the decision.

There have been many appellate decisions that have addressed this issue of an adjacent landowner’s duty to warn third persons about defective conditions on real property. In the Peters & Freedman January, 1998 newsletter, we discussed the case of Contreras v. Anderson where a California appellate court determined that an adjacent landowner did not have a duty to warn third parties about a dangerous sidewalk since the owner merely performed periodic trimming of trees, gardening, sweeping, and removal of trash on the property. In contrast, the 1997 California Supreme Court decision of Alcaraz v. Vece determined that an adjacent landowner was liable to third parties for a dangerous condition on real property.

The issue that courts tend to focus on to determine an adjacent landowner’s liability is the degree of possession and control the landowner exercises over the property in question. Where an adjacent landowner exercises sufficient possession or control over that land, he or she then has a duty to take reasonable measures to protect persons from dangerous conditions on that adjoining land.

In the Alpert case, Ms. Alpert tripped over a portion of the adjacent sidewalk that had been uplifted due to tree roots growing under the sidewalk. The court determined that because the homeowners association planted and maintained all of the trees and vegetation in the area on both sides of the sidewalk, had installed sprinklers and watered and trimmed the trees which grew the offending roots, the association had exercised sufficient possession and control over the adjacent sidewalk and was therefore obligated to warn third parties of the dangerous condition in the sidewalk.

The appellate court also concluded that the association’s knowledge about the dangerous condition on the walkway and its discussions about repairing the sidewalk prior to Ms. Alpert’s fall further evidenced the association’s possession and control over the sidewalk, and thus, its duty. The association’s discussions regarding the repairs were set forth in the minutes of its board meetings, which the association sought to have excluded under California Evidence Code Section 1151. That section provides that evidence of remedial measures taken after an event cannot be introduced into evidence to prove a defendant’s liability. The policy behind this code section is to encourage landowners to correct defective conditions in their property after an accident.

The appellate court determined that the board minutes of the association’s discussions regarding repairing the sidewalk would not be introduced to prove the association’s liability, but rather that the association exercised possession and control over the sidewalk and had prior knowledge of the defective condition. Accordingly, the appellate court determined that those minutes should be introduced into evidence at trial.

This case, as well as the Contreras and Alcaraz cases demonstrate that an adjacent landowner’s liability for injuries is largely a factual determination of the control and possession exercised over the property in question. If you notice a dangerous condition on property over which your association exercises control, but which it does not own, you should contact the owner of the property and ensure that the dangerous condition is corrected as soon as possible.