Rosales v. Stewart

Opinion

STEPHENS, J.

Appellants, Saul and Rosa Rosales, initiated this wrongful death action in their capacity as the parents and only heirs of Noemi Rosales who was 10 years old at the time of her death.

While in the backyard of her home, on the afternoon of June 6, 1978, Noemi was struck by a bullet fired by one Steven Boyer (hereinafter Boyer) while standing in the backyard of a dwelling which he was renting from respondent Thelma Stewart. Two days later Noemi died as a result of the injuries she suffered when struck by the bullet. The backyard of the dwelling owned by Thelma Stewart, from which her tenant had fired the fatal shot, adjoined that of decedent.

Appellants alleged in the first amended complaint that “From at least May, 1978, defendants [Stewart and Does] were aware that their tenant,.. occasionally discharged a firearm in the backyard of the rented dwelling.... [11] Defendants [Stewart and Does] knew that such conduct had occurred and that such conduct was likely to occur in the future and was likely to constitute a threat to the lives and safety of persons,... [11] On June 6, 1978, defendants [Stewart and Does] negligently failed to exercise ordinary care in management of their property and to. prevent defendants from constituting a physical threat to other persons.”

[133]

This appeal is taken from an order of dismissal entered after respondent’s demurrer to appellants’ first amended complaint was sustained without leave to amend.

I.

The primary issue on this appeal is whether a landlord may be liable for the acts of her tenant committed on the leased premises which injure persons on the adjoining premises.

Regarding the elements of a cause of action for negligent injury to person or property, the complaint “must allege (1) defendant’s legal duty of care toward plaintiff;... (2) defendant’s breach of duty—the negligent act or omission;... (3) injury to plaintiff as a result of the breach—proximate or legal cause;... [and] (4) damage to plaintiff....” (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 450, p. 2103.)