October 7, 2020

Lopez v. City of Los Angeles (2020) 196 Cal.App.4th 675

Plaintiff stepped into what appeared to be a puddle where a street gutter met the edge of a driveway and discovered it was, in fact, a four inch deep pothole. He suffered injuries and filed suit against both the city that owned the street gutter where the pothole was located, and the business that leased the adjoining property. The jury returned a verdict for plaintiff against both the City and the business. The business owner filed a motion for judgment notwithstanding the verdict, arguing there was no substantial evidence that the business exercised control over the gutter. The trial court granted the motion, and the City appealed.

The Court of Appeal affirmed. To be liable for a hazard on adjoining property, the property owner must take some affirmative action, either by creating the hazard, changing the public property’s configuration or “treating [the hazard] as its own” to a “ ‘dramatic’ ” extent. Here, the business owner neither created nor asserted rights of ownership over the city gutter where the pothole was located, and therefore did not assert control over the pothole. Additionally, as the court noted, expanding liability to the business owner would be “at odds with the public policy underlying boundaries of tort law” and impose[ ] liability upon owners who have in no meaningful way actually exercised control over the public property they are now charged with protecting.”