A tenant's risky decision to drop from the roof to his balcony was potentially within the scope of foreseeable dangers a landlord has the duty to protect tenants from. In the case of Razoumovitch v. 726 Hudson Avenue, LLC, the court reminded the parties that California law imposes a general duty on everyone, including property managers, to take reasonable care to keep others safe. In this case. the landlord did not successfully show that a public policy exception changed that duty. The court concluded that the granting of summary judgment was not proper because foreseeability may not be determined as a matter of law, but rather was a question for a jury to determine.
The tenant, Arkadi Razoumovitch, was locked out of his apartment one evening. The building was owned and operated by 726 Hudson Avenue, LLC, Kohen Investments LLC, Shahab Kohen and Brianna Camitses (the 726 Hudson defendants). Since Razoumovitch saw no other alternative, he used the open access on the roof of the building to enter his apartment by attempting to lower himself from the roof to his apartment balcony. In this attempt he fell several stories to a landing below. Razoumovitch brought a claim against the 726 Hudson defendants for negligence and premises liability. He claimed that they failed to operate the apartment building in a safe manner. He alleged that the 726 Hudson was "responsible for creating the dangerous condition that caused his injuries." In his complaint he asserted that 726 Hudson's should have restricted access to the roof, put up barriers and/or placed an alarm on the roof to alert the owners that someone was on the roof.
726 Hudson moved for summary judgment responding that they did not owe a duty of care under these circumstances. The trial court agreed and granted the motion. On appeal the court disagreed, however, and found that "California law imposes a duty on everyone, including landlords. to exercise reasonable care, and the 726 Hudson defendants have not shown that public policy considerations justify departing from that general duty; and causation, as it is most cases, is a factual issue." Based on this analysis, it reversed.
Did the Landlord Act Negligently?
The primary question for the court was whether or not the building owners and operators were liable for negligence and failed in their duty to protect the tenant from the type of injury he suffered in this case. In order to prove a claim of negligence, a plaintiff must show:
- The existence of a duty of care
- Breach of that duty
- Proximate cause linking the breach to the plaintiff's injury, and
- Damages resulting from that breach. Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 767-768.
In the case at hand, a tenant made the decision to go up on the roof and attempt to jump onto his apartment balcony in order to gain access to his apartment. Although the lower court found that the landlord did not owe a duty to the injured tenant due to his own decisions to engage in a dangerous maneuver, on appeal the court disagreed.
Civil Code section 1714 provides the general rule regarding duty. This section states, "Everyone is responsible… for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…" In the context of a landlord, precedent provides that "a landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises." Kaney v. Custance, 74 Cal.App.5th 201 (Cal Ct. App. 2022).
In addition, Rowland v. Christian (1968) 69 Cal.2d 108 lays out public policy considerations that may act as exceptions to a duty of care. "The Supreme Court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodies in Civil Code section 1714:
- The foreseeability of harm to the plaintiff,
- The degree of certainty that the plaintiff suffered injury,
- The closeness of blame attached to the defendant's conduct,
- The policy of preventing future harm,
- The extent of the burden to the defendant and consequences of the community of imposing a duty to exercise care with resulting liability for breach,
- the availability, cost, and prevalence of insurance for the risk involved."
Were the Tenant's Actions Foreseeable?
The appellate court here emphasized on several occasions that the Rowland factors are meant to be interpreted rather generally. "As to foreseeability… the court's task in determining duty is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed." Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 127. The court here was not persuaded that any of the public policy exceptions noted in the Rowland case were present in the current action.
Although 726 Hudson argues that the court should first determine whether the tenant's actions in this case were foreseeable, they ignore the fundamental premise imposed by Civil Code section 1714, that foremost and primarily they owed the tenant a duty of care to provide and maintain safe conditions at the apartment building. Therefore, the court reasoned that the inquiry should begin with an acknowledgment that the basic policy holds that "everyone is responsible for injury caused to another by his want of ordinary care or skill in the management of his property, and then considers whether more particular considerations of policy call for departure from the basic rule."
726 Hudson also made the mistake of arguing that under the Rowland factors they did not owe the tenant a duty of care in this situation. In applying the Rowland factors, "courts do not ask whether they support an exception to the general duty of reasonable care on the facts of the particular case before the court, but whether the carving out of an entire category of cases form that general duty rule is justified by clear considerations of public policy." T.L. v. City Ambulance of Eureka, Inc. (2022) 83 Cal.App.5th 864, 876. The court determined that it was indisputable that 726 Hudson owed the tenant a duty of care as a starting point. Their reliance on the circumstances surrounding the tenant's fall in this case do not justify a complete departure from the general duty rule.
The defense also asserted unsuccessfully that its duty was nullified by the open and obvious rule. Where a danger is open and obvious, a landowner will not be liable because the foreseeability of harm is absent. In other words, a reasonable person would be expected to see the danger and avoid it. "Generally, if a danger is so obvious that a person could be reasonably expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition." Jacobs v. Coldwell Banker, 14 Cal. App;5th 438, 447 (2017).
Although 726 Hudson argues that hanging from a roof and attempting to drop to a lower balcony should be an open and obvious danger, the court disagreed and instead ruled that this theory does not assist the landowners here because they still had a duty to act with reasonable care. 726 Hudson had a duty to remedy or warn the tenant that there was not an onsite property manager present at all times and a 24 hour emergency phone line was not available. The lack of these resources is what caused the tenant to make the decision to use the roof to try to leverage himself onto his balcony. "While the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that because of necessity or other circumstances, a person may choose to encounter the condition." Kaney, supra, 72 Cal.App. 5th at 215.
The tenant clearly articulated that he was unable to access assistance in getting into his apartment on the night in question. According to the court, this made it foreseeable that he may attempt to use roof access to get to the balcony attached to his unit. 726 Hudson failed to demonstrate that they did not owe the tenant a duty under the law in this circumstance. Further, the foreseeability of the tenant's actions in attempting to gain access to his apartment by way of the roof was a question of fact for a jury and could not be determined by way of a motion for summary judgment as the lower court attempted to do.
The bottom line is that landlords in California may be found liable for nonsensical acts of their tenants as they have a general duty to make the premises safe. A duty of care is owed to everyone and something that may seem an open and obvious danger may not qualify as such in the eyes of the court.