After concluding there is no such duty under section 104113 because it is limited to the "health studio" tenant, the Appellate Court reviewed whether there was a common law duty in addressing the claims for negligence per se and negligence. The trial concluded that it would be unreasonable to impose a duty on a mere property owner or landlord to inspect property being leased for use as a boxing training gym to ensure compliance with section 104113.
Plaintiffs contended that even if defendant did not have a statutory duty to acquire and maintain an AED, it had a common law duty to ensure the premises were equipped with an AED before Wild Card took possession of the boxing gym. They contended that this duty required defendant to either provide an AED at the premises that it leased to Wild Card to operate a boxing gym, or to specifically require Wild Card to obtain and maintain an AED as a condition of the lease.
The elements of a cause of action for negligence in California are:
1. the defendant had a duty to use due care;
2. the defendant breached that duty; and
3. the breach was the proximate or legal cause of the resulting injury.
The existence of duty is a question of law to be decided by the court, and the courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition. However, acknowledgment of the broad proposition that landowners have a duty to exercise reasonable care to maintain their property in a safe condition provides scant guidance to a court that must determine the existence of the landlord’s duty in a particular case.
With regard to landlords, “reasonable care" ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later. Because a landlord has relinquished possessory interest in the land, the duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.
The existence of a duty is not an immutable fact, but rather an expression of policy considerations leading to the legal conclusion that a plaintiff is entitled to a defendant’s protection. Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same – to conform to the legal standard of reasonable conduct in the light of the apparent risk.
In Rowland v. Christian, the California Supreme Court identified a number of factors that courts may consider to determine whether a duty applies in a particular case:
1. the foreseeability of harm to the plaintiff;
2. the degree of certainty that the plaintiff suffered injury;
3. the closeness of the connection between the defendant’s conduct and the injury suffered;
4. the moral blame attached to the defendant’s conduct;
5. the policy of preventing future harm;
6. 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
7. the availability, cost, and prevalence of insurance for the risk involved.
The chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk. But even when a risk is foreseeable, policy considerations may dictate a cause of action should not be sanctioned.
The California Supreme Court recently addressed the issue of whether a large department store owed its customers a duty to make available on its premises an AED for use in a medical emergency in Verdugo v. Target Corp. The Supreme Court observed that when determining whether a business owes a “duty to take precautionary steps prior to the time . . . an injury or illness has occurred” – such as having an AED on premises in case a patron suffers a cardiac arrest – California courts primarily look at a number of factors, including:
1. the degree of foreseeability that the danger will arise on the business’s premises; and
2. the relative burden that providing a particular precautionary measure will place upon the business.
If the relative burden of providing a particular precautionary safety or security measure is onerous rather than minimal, the governing cases have held that absent a showing of a "heightened" or "high degree" of foreseeability of the danger in question, it is not appropriate for courts to recognize or impose a common law duty to provide the measure.
Addressing the burden of providing an AED for the use of Target’s patrons, the Supreme Court in Verdugo found it would be “considerably more than a minor or minimal burden" on a business establishment. The statutory provisions and related regulations establishing the prerequisites to civil immunity for those entities acquiring an AED reflect the numerous related requirements that a jury is likely to view as reasonably necessary to comply with such a duty. Apart from the initial cost of the AEDs themselves, significant obligations with regard to the number, the placement, and the ongoing maintenance of such devices, combined with the need to regularly train personnel to properly utilize and service the AEDs and to administer CPR, as well as to have trained personnel reasonably available on the business premises, illustrate the magnitude of the burden. Compliance with these numerous obligations clearly implicates more than a minor or minimal burden.
With respect to foreseeability, the Supreme Court found in Verdugo that there was no allegation that any aspect of Target’s operations or the activities that its customers engage in on the premises gives rise to a high degree of foreseeability that those customers will suffer cardiac arrest on the premises. Instead, it appears that the risk of such an occurrence is no greater at Target than at any other location open to the public. Therefore, the Court concluded that Target owed no common law duty to its customers to acquire and make available an AED.
Unlike Target, which was the operator of the business and therefore had possession and control of the premises and would have the ability to ensure compliance with these requirements, the defendant in Lupo Vine Street was a landlord out of possession of the premises. Imposing a duty to provide an AED in this instance would require defendant to stay in constant contact with its tenant to see if the AED had been used (so it could be tested) and to obtain permission to enter the premises at least every 90 days to inspect the AED. This is a far greater burden than that which would have been imposed on Target.
Second, although plaintiffs contended that it was foreseeable that a patron of the boxing gym might suffer cardiac arrest because it is a matter of common experience and knowledge that people may experience heart problems during strenuous exercise, the Appellate Court questioned whether that purported “common experience and knowledge” may be imputed to the landlord, inasmuch as there is no evidence that any of the principals of defendant had any experience in the sports, health, or fitness business. Thus, it is uncertain whether there was a sufficiently heightened or high degree of foreseeability of the danger in question to outweigh the considerable burden that would be placed on the landlord if the Appellate Court was to find a common law duty to provide an AED on the premises of the boxing gym.
Finally, even if it is “common experience and knowledge” that people who engage in strenuous exercise may experience heart problems, the question remains whether it is sound policy to require a landlord to investigate all of the dangers posed by the operation of the business of each of its tenants and to provide measures or devices to mitigate injuries caused by the tenant’s business rather than by any dangerous condition on the property itself. The Appellate Court concluded it is not. A landlord cannot be held to be responsible for all dangers inherent in a dangerous business. Accordingly, the Appellate Court ruled that the trial court correctly found that the landlord did not owe a duty to provide an AED on the premises where Wild Card operated its boxing gym.
Having determined that the landlord did not owe a duty to Wild Card’s patrons to provide an AED on the premises, the Appellate Court determined whether defendant owed a duty to require as a condition of its lease that Wild Card provide an AED on the premises. The short answer is that defendant did require Wild Card to provide an AED, because the lease required Wild Card to comply with all laws and statutes, which would include section 104113. But even if this provision was insufficient because it did not specifically identify section 104113, the Appellate Court concluded, based upon the Rowland factors, that the landlord did not owe a duty to specifically require Wild Card to provide an AED at the premises.
In sum, the balance of the Rowland factors weighed in favor of finding that the landlord did not owe plaintiffs a duty to ensure that Wild Card obtained and maintained an AED on the premises where it operated its boxing gym. Accordingly, the trial court did not err in granting the landlord summary judgment on the ground that plaintiffs could not establish a necessary element of their negligence cause of action.
This decision provides an outline of the issues a landlord should remain aware of regarding the condition of the premises leased to a tenant, and whether a common law duty is owed by the landlord to a tenant. Although the Lupa Vine Street case addressed a commercial tenancy, it is also beneficial for a landlord of residential property to review the case and the various issues discussed in that decision.
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