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Alcaraz v. Vece11/9/1995
HAERLE, J.
I. SUMMARY
Gildardo Alcaraz (plaintiff) sued his landlords, Peter Vece and others (defendants), for personal injuries allegedly suffered when he stepped on an uncovered or broken concrete utility meter box in the lawn near his apartment building. The trial court granted summary judgment for defendants because they neither owned nor had control over the utility box. We reverse, finding a triable issue of fact as to whether circumstances existed which created a duty of defendants to warn or protect plaintiff from the danger.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 1991 plaintiff filed a complaint alleging that he suffered personal injury arising from premises liability due to defendants' negligent maintenance of their property and their failure to warn or guard plaintiff against a dangerous condition. On March 31, 1993, plaintiff filed a first amended complaint for damages "arising from premises liability and negligence," alleging that defendants were the owners of property located at 141, 143, 145, and 147 Lincoln Avenue, Redwood City, and plaintiff was their tenant. On the night of April 17, 1990, the complaint continued, plaintiff walked onto the grass at 141 Lincoln and stepped on an uncovered, broken utility service box "located on [defendant's] property," causing him to slip or trip and fall. According to the allegations, defendants "contributed to or assisted in the creation of a dangerous and defective condition on their property ... which had existed on such property in sufficient time for [defendants] to have constructive knowledge of such condition." Within six months prior to the date of the accident, the complaint alleged, defendants had been put on actual notice of the dangerous and defective condition, were asked to remedy it, and failed to do so.
The complaint alleged a single cause of action for "negligence/premises liability." Plaintiff's theory was that defendants failed to supervise persons
coming onto the property and thereby allowed the cover of the utility service box to become broken or uncovered. The complaint alleged that defendants failed to exercise care as required by Civil Code section 1714, proximately causing injury and loss to plaintiff.
After filing answers and a cross-complaint against Redwood City (city), defendants moved for summary judgment on the theory that they neither owned nor had control over the meter box. A declaration in support of the motion by Roger Bender, a department of public works supervisor, stated on behalf of the city substantially as follows: the city operates the water department and is responsible for the water delivery system, including meters set in the ground and their covers; the water department is responsible for repairing and replacing broken or missing water meter covers; the water meter set in the ground for the apartment building in question was a municipal water meter and box; and it was located on city property.
Jon Lynch, the senior civil engineer for the city, reviewed various relevant block books and maps and declared that the meter box in question "is located entirely within ten foot strip of [city]-owned land."
Defendants submitted affidavits stating that: they did not maintain or control the meter box; they understood that the meter box was owned, possessed, maintained and controlled by the city, which would repair broken meter boxes; they did not have control over the city or the water department so as to require them to repair or replace a broken meter cover; and they did not remove or break the meter cover.
Plaintiff opposed the motion. He f
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