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Friday, September 9, 2016

Premise Liability Expanded


Most everyone who pays attention to real estate matters knows that along with ownership and/or control of real property comes various liabilities. If someone gets hurt on property that you own and/or control, then, depending on what happened and how, you may be held liable for their injury. Among other things, you have a duty to exercise reasonable care not to expose people to a risk of foreseeable harm. But what about property that is next to or around yours? Do you have any duties to prevent harm from occurring on them? In some circumstances, the answer may be ‘yes' according to a ruling by California's Third Appellate District Court of Appeal. (Vasilenko v. Grace Family Church, June 17, 2016)

Grace Family Church (GFC) in Sacramento regularly had more attendees at various events than could be accommodated by the church's parking lot. GFC entered into an agreement with a swim school across the street that allowed the church to use the school's lot as an overflow parking facility. When the church had an event requiring overflow parking, it staffed the school parking lot with two attendants: one to direct cars into the lot and one to show them where to park.

Between the school and the church is Marconi Avenue, which at that point consisted of two eastbound lanes, two westbound, and a central left turn lane. The nearest intersection to the church and the school is between 50 to 100 feet away. The intersection had neither a traffic light nor a marked crosswalk.

On the evening of November 19, 2010, the plaintiff, Aleksander Vasilenko, went to the church to attend an event. The main lot was full and he was directed to the overflow lot across the street. When Mr. Vasilenko parked there he did not receive any direction as to how or where he should cross the street in order to get back to the church. Along with two other people, Mr. Vasilenko attempted to cross Marconi Avenue directly to the church. En route the others saw a car coming and ran; Mr. Vasilenko was hit by the car and injured.

Subsequently, Vasilenko sued the church. He alleged that Grace Family Church had "created a foreseeable risk of harm by maintaining an overflow parking lot in a location that required its invitees to cross Marconi Avenue, was negligent in failing to protect against that risk, and as a result, he was hit by a car while crossing the street." At the trial, the church moved for summary judgment (essentially, dismissal) on the ground that it, "did not have a duty to assist [Vasilenko] with or provide instruction about how to safely cross a public street that it did not own, possess, or control." The trial court granted the dismissal, saying that the church "did not owe a duty of care to the plaintiff or other members of the public to assist them in safely crossing a public street, which it did not own or control."

Vasilenko appealed.

The appellate court disagreed with the trial court. While it noted that "usually a landowner has no duty to prevent injury on adjacent property;" nonetheless, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite." [my emphasis] It said, "the salient fact is not that GFC did not control the public street where Vasilenko was injured, but that it did control the location and operation of its overflow parking lot…" [emphasis in original] Moreover, "GFC created the danger by maintaining the overflow lot in a location that required invitees to cross a busy thoroughfare that it knew lacked a crosswalk or traffic signal in order to reach the church."

The summary judgment was reversed and the matter was sent back to the trial court.

One wonders what a jury might do with this.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way. His email address is scbhunt@aol.com.


Written by Bob Hunt

Nancy M. Alexander Stone Harbor and Avalon NJ Real Estate