Control Is the Key – When Unsafe Property Conditions Result in Injury

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA

Let’s continue with figuring out the basis for how a tenant can recover against someone for an injury due to an unsafe condition on the property.

I say “someone” because as we have seen previously, it does not need to be the landlord who gets sued.  It can be the lessor, the “occupier,” or anyone who “controls” the property.  The last one may seem a bit redundant, but it is not.  Certainly the person occupying the premises exerts control over it.  Same for the owner.  Even if he is renting out the property, he has control over repairs accomplished, signs to be placed on it, fences to be built, etc.

But there can be situations in which a person does not own or occupy land, but nonetheless controls it.  In California, “a person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own.  A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.”

Where does this situation arise? It does not arise from “simple maintenance.”  If for example, you were mowing a strip of lawn that adjoins your property but is not on it, this alone will not constitute control.  But “maintenance” is a factor to consider in control over the property.  However by itself, being “neighborly” in this manner will not usually constitute control such as to attach liability for an injury that occurs there.

I had a case once where we represented a landowner being sued for an injury that occurred off the property.  The plaintiff was leaving the premises late at night.  It was rural but close to urban, if that makes any sense.  Two of the publicly maintained streetlights were out.  An individual driving a car – he was probably overloaded on Vicodin due to a skateboarding injury he had recently had – forgot to turn his lights on.  The plaintiff did not see him due to the absence of his car lights and, possibly, the streetlights.  She stepped in front of the car and was badly hurt when the car hit her.  The driver did not have any insurance, so she sued the adjoining landowner.

Her initial theory was that our client “controlled” the publicly maintained streetlights which were out.  When I sucessfully objected on the grounds that an adjoining landlowner does not “control” the public streetlights, the plaintiff changed her theory.  Next, she alleged that two parking lot lights which were on our property were also out, and that if these lights were on she would not have been hit.

I almost had her out on this theory as well, but I will tell you about that over a beer sometime.  She was able to proceed and there was an interesting discovery involving witnesses to the accident and lighting experts- were the lights on or off?  Did the plaintiff’s counsel visit you, Mr. Neutral witness, at your house and show you pictures of the injured plaintiff before you testifified in this case? Was I there when this happened?

Ladies and gentlemen of the jury I submit to you that the lights my client controlled were on, and well maintained.  There may have been some public street lights that were not on . . .

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