Alcaraz v. Vece

929 P.2d 1239, 14 Cal. 4th 1149, 97 Cal. Daily Op. Serv. 786, 60 Cal. Rptr. 2d 448, 97 Daily Journal DAR 1105, 1997 Cal. LEXIS 34

• Court: California Supreme Court
• Decided: January 31, 1997
• Docket: S050761
• Status: Published

Opinions

Opinion

GEORGE, C. J.—Plaintiff

Gilardo C. Alcaraz was injured when he stepped into a water meter box located in the lawn in front of the rental property of which he was a tenant. The cover of the meter box either was broken or missing. He sued his landlords, but the superior court granted summary judgment for defendants because the meter box was not located on defendants’ property, but within an adjacent strip of land owned by the city, running between the sidewalk and defendants’ property line.

For the reasons that follow, we affirm the Court of Appeal’s ruling that the superior court erred in granting summary judgment for defendants, because we conclude that a triable issue of fact exists as to whether defendants exercised control over the narrow strip of land owned by the city, that was located adjacent to, and was not noticeably separate from, defendants’ property, and thus had a duty to warn plaintiff of, or protect him from, the hazard in question. Our determination that a triable issue of fact exists as to whether defendants exercised control over the property on which the hazard was located resolves the issue whether the superior court properly granted summary judgment for defendants and, therefore, we have no occasion in this case to decide under what circumstances, if any, a possessor of land may owe a duty to warn persons on the property of a hazard located on adjacent property that he or she does not own, possess, or control.

I

On April 17, 1991, Gilardo C. Alcaraz filed a complaint against the owners of the rental property of which he was a tenant, located at 141-147 Lincoln Avenue in the City of Redwood City (the city), alleging he had suffered personal injuries. In an amended complaint, he alleged that on the evening of April 17, 1990, he was injured when he stepped into a utility meter box embedded in the lawn next to the sidewalk in front of the building in which he was renting an apartment. Plaintiff alleged that defendants had actual notice that the cover to the utility box either was broken or missing.

On November 12, 1993, defendants filed a cross-complaint against the city and its water department, alleging that cross-defendants owned and maintained the meter box into which plaintiff had fallen and knew, or should have known, of its dangerous condition.

Defendants thereafter filed a motion for summary judgment on the complaint, asserting they owed no duty to plaintiff because they did not own either the meter box or the land upon which it was located. The evidence offered in support of the motion for summary judgment included a declaration from Jon Lynch, senior civil engineer for the city, stating that the meter box was located within a 10-foot-wide strip of land owned by the city that extends from the curb of Lincoln Avenue to defendants’ property line, encompassing the sidewalk and an additional approximately 2-foot-wide strip of lawn area adjacent to defendants’ property line. The closest edge of the meter box was one foot from defendants’ property line. Attached as an exhibit to the declaration was a copy of a page from the city’s utility block book showing that the meter box was located within this 10-foot-wide strip of land owned by the city.

Defendants also offered in support of the motion the declaration of a licensed land surveyor, John May, who stated that he had conducted a survey and concluded “that the subject water meter is located outside the property boundaries of 141-147 Lincoln Avenue.” A hand-drawn map attached as an exhibit to the declaration indicates that the nearest edge of the water meter is three inches from defendants’ property line, and that the water meter is located within the strip of land owned by the city, specifically in an area approximately two feet wide lying between the sidewalk and defendants’ property line.

In his opposition to defendants’ motion for summary judgment, plaintiff maintained that defendants were responsible for his injuries because they “either own a portion of the property on which the meter box is located, .. . or more importantly, defendants maintain and control the subject premises.” Plaintiff submitted photographs of the premises where the accident occurred and excerpts of a deposition of defendant Peter Vece, to establish that (1) prior to and at the time of the accident, defendants maintained the entire lawn from the front of the apartment building to the sidewalk, including that portion of the lawn that lies on the strip of land owned by the city, and (2) subsequent to the incident in question, defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of their property, including the approximately two-foot wide portion of the strip of land owned by the city lying between the sidewalk and defendants’ property line.

In addition, plaintiff submitted the declaration of Stephen Amer, a neighbor who resided in the same building at the time of the accident. The declaration stated that, on several occasions, Amer had informed both defendant Vece and “various ‘Water Company meter readers’ ” that the cover of the meter box either was broken or missing. Plaintiff also submitted the declaration of Stanley Gray, a licensed land surveyor, who stated that he had conducted a survey of defendants’ property and concluded “that the southerly right-of-way line of Lincoln Avenue, Redwood City, California cannot be ascertained within standard accuracy (1:10,000). Making an absolute statement about this boundary line is an impossibility as no recoverable monuments were set in 1902 within the subdivision. I found a variation of professional opinions in a total range of nine inches. It is reasonably probable, therefore, that the subject water meter box is not entirely located on property owned by the City of Redwood City, but rather a portion thereof may be located inside the property boundaries of 141-147 Lincoln Avenue, Redwood City, California.”¹

The superior court granted defendants’ motion for summary judgment, issuing a written opinion concluding that no triable issues of fact existed, because defendants neither owned nor exercised control over the meter box and “it is undisputed that the City of Redwood City owns the real property upon which the box is located . . . and exercises control over the box

The Court of Appeal reversed the summary judgment rendered by the superior court. The appellate court agreed with the lower court “that the declarations filed by defendants demonstrated that there was no triable issue as to the fact of ownership of the meter box, because defendants neither owned nor exercised control over the meter box.” The Court of Appeal also agreed that there was “no triable issue of fact [disputing] that the city, not defendants, owned the real property on which the meter box was located.” But the appellate court went on to conclude that the superior court had erred in granting summary judgment for defendants, because there existed a “triable issue of fact as to whether the combination of the circumstances of defendants’ actual or apparent control over immediately adjacent premises and the foreseeability of injury to plaintiff created a duty on the part of defendants to either warn plaintiff of the danger, or protect him from it, or both.” The Court of Appeal reasoned that the circumstances that “defendants maintained the lawn completely surrounding the meter box” and that defendant Vece had actual notice of the broken or missing cover, gave rise to a duty to protect or warn plaintiff.

II

A

The superior court granted summary judgment in favor of defendants on the grounds that they did not own, or exercise control over, the water meter box into which plaintiff fell, and did not own the land upon which the meter box was located. Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

The circumstance that defendants did not own or exercise control over the meter box itself does not entitle them to judgment as a matter of law. “The proper test to be applied to the liability of the possessor of land ... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . .” (Rowland, v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) This requires persons “to maintain land in their possession and control in a reasonably safe condition. [Citations.]” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].)

This duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. For example, in Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233 [282 P.2d 69], this court held that the owner of land could be held liable for failing to warn its tenant of the danger posed by use of a crane near overhead electrical lines, even though the landowner neither owned nor maintained the electrical lines. The Court of Appeal reached the same conclusion on similar facts in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 [9 Cal.Rptr.2d 124]. Accordingly, in the present case, if the condition of the meter box created a dangerous condition on land that was in defendants’ possession or control, defendants owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not defendants owned, or exercised control over, the meter box itself. In other words, if the presence of the broken meter box made it dangerous to walk across land in defendants’ possession or control, defendants had a duty to place a warning or barrier near the box to protect persons on the land from that danger.

The following hypothetical situation illustrates this point. If a live power transmission line falls, creating a hazard, the possessor of the property on which the power line has fallen, who knows of the hazard, cannot escape liability for injuries to persons who enter the land and encounter the power line simply because the land possessor does not own the power line and lacks the authority to disconnect the line or remove it. A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard.

Defendants rely upon the decision in Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706 [8 Cal.Rptr.2d 819] to support their contention that they are not liable for plaintiff’s injuries because they did not control the meter box itself. In Hamilton, the plaintiff was injured while standing in the parking lot of a bowling alley when a sign fell from the wall of an adjacent building. The bowling alley did not own the sign or the wall, but had refurbished and rehung another sign on the wall and had repainted a small portion of the wall to cover graffiti, all without seeking the owner’s permission. The plaintiff argued that the bowling alley had exercised sufficient control over the wall to warrant imposition of a duty to inspect the sign that fell, but the Court of Appeal disagreed, observing that although the defendant had exercised some degree of control over the wall, it had not exercised control over the sign that caused the plaintiff’s injuries. The Court of Appeal concluded: “It follows that plaintiff’s proposed evidence was insufficient to establish a duty on defendant’s part to discover the dangerous condition of the sign . . . .” (Id. at p. 1713.)

Hamilton is distinguishable from the present case. Unlike Hamilton, the issue in the case before us is not whether defendants had a duty to discover a dangerous condition located on property they did not own. Plaintiff in the present case alleged that defendants had received actual notice of the defective condition of the meter box. The issue, therefore, is not whether defendants had a duty to inspect or repair the meter box, but whether, in light of their alleged knowledge of the dangerous condition of the meter box, they had a duty to persons entering the strip of land to protect them from, or warn them of, the hazard. Defendants could satisfy such a duty by posting warnings or erecting barricades on the property under their control, and would not have been required to inspect or repair the meter box.

Hamilton would be more like the present case if the bowling alley had received actual notice that the sign hanging over its parking lot was secured to the wall improperly and in danger of falling. Under such circumstances, the bowling alley would have had a duty to persons using its parking lot to protect them from, or warn them of, the dangerous sign.

B

Neither does the circumstance that defendants in the present case did not own the land on which the meter box was located entitle them to judgment as a matter of law. In the present case, the superior court found it was undisputed that defendants did not own the narrow strip of land on which the meter box was located, and plaintiff does not challenge that determination here. There remains a triable issue of fact, however, whether defendants exercised control over that land and thus had a duty to protect or warn plaintiff.

“ ‘[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because [of the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.’ ” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368 [178 Cal.Rptr. 783, 636 P.2d 1121]; Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal.Rptr. 817, 720 P.2d 476] [“Sprecher demonstrates that we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.”].) This court recognized in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394 [170 P.2d 5] that a defendant who lacks title to property still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises control over the property. One of the defendants in Johnston operated a restaurant in a portion of a building leased from the owner of the property. A prospective customer of the restaurant fell while walking from her automobile onto an unlit portion of a walkway leading to the restaurant. The walkway was not situated within the premises leased by the defendant. This court observed: “A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control. [Citations.] Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition. It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.”² (28 Cal.2d at p. 401.)

We subsequently restated the principles announced in Johnston: “The courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on ‘the premises.’ The physical area encompassed by the term ‘the premises’ does not, however, coincide with the area to which the invitor possesses a title or a lease. The ‘premises’ may be less or greater than the invitor’s property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control.” (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 239 [60 Cal.Rptr. 510, 430 P.2d 68], fns. omitted, italics added.)

The Restatement Second of Torts uses the phrase “possessor of land,” rather than the terms “owner” or “lessee,” to describe who may be liable for injuries caused by a dangerous condition of land. (See, e.g., Rest.2d Torts, § 343, p. 215.) Section 328E (p. 170) of the Restatement Second of Torts defines the term “possessor of land” to include “a person who is in occupation of the land with intent to control it. . . .” The comment to this section explains: “The important thing in the law of torts is the possession and not whether it is or is not rightful as between the possessor and some third person.” (Id., § 328E, com. a, p. 171.)

In similar fashion, the Courts of Appeal have recognized that a defendant’s potential liability for injuries caused by a dangerous condition of property may be based upon the defendant’s exercise of control over the property. “In common law parlance, the possessor of land is the party bearing responsibility for its safe condition. Possession, in turn, is equated with occupancy plus control. [Citations.] Thus, in identifying the party vulnerable to a verdict, control dominates over title. ‘The crucial element is control.’ [Citation.]” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831 [87 Cal.Rptr. 173]; see also Both v. Harband (1958) 164 Cal.App.2d 743, 748 [331 P.2d 140] [“[A]ctual exercise of control by the tenant [over a portion of leased property], even though the lease itself confers no right of such control upon him, can subject him to liability.”].)³

In Orthmann v. Apple River Campground, Inc. (7th Cir. 1985) 757 F.2d 909, the foregoing principles were applied to circumstances analogous to those in the present case. The plaintiff in that case rented an inner tube in order to float down a river, and stopped at a place on the riverbank from which a tree extended over the river. The tree frequently was used for diving. The plaintiff dived into the river, struck his head on a submerged rock, and was injured. He sued the association that had rented the inner tube to him and that owned most of the land bordering this stretch of the river—but not the land from which the plaintiff dove. That section of the riverbank was owned by the Montbriand family.

In permitting the plaintiff to proceed with his suit, the federal appellate court stated that the case before it was difficult, because “defendants do not own the property from which Orthmann dove. But according to an affidavit .... shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did—the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession.

“This is not to say that the defendants could be held liable, under any tort theory we know, if their customers just strayed onto someone else’s property and got injured there. . . . But if the landowner treats the neighbor’s property as an integral part of his, the lack of formal title is immaterial. Whoever controls the land is responsible for its safety. [Citation.] That is why it is normally the tenant rather than the landlord who is liable to anyone injured as a result of a dangerous condition on leased land and why this field of tort law is more accurately described as land occupiers’ and possessors’ liability than as landowners’ liability. [Citations.] HD It would make no sense to treat an occupier more leniently just because his rights in the land were less well-defined than a tenant’s—or maybe were nonexistent.” (757 F.2d at pp. 913-914.)

In Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944 [191 App.D.C. 242], the plaintiff was driving on a public street that ran through a federally owned and maintained park, when a tree fell upon his automobile, injuring him. The plaintiff sued the District of Columbia, which owned and maintained the street, and the United States Government, which owned and maintained the park. The tree that fell upon plaintiff, however, had stood on a tract of land owned by the Government of India. When the park was established in 1945, the United States had attempted to purchase this land. The Government of India refused to sell the land, but promised to preserve the “ ‘natural park-like character’ of the tract.” {Id. at p. 949.) The appellate court observed: “Pursuant to this agreement, the tract of land on which the fallen tulip poplar stood has been left in a wooded state indistinguishable from contiguous federal parkland. From 1945 through the date of appellee’s injuries, the tract was marked with wooden stakes and granite boundary monuments bearing United States insignia, identical with those located on federally owned lands. In addition, the wooden stakes had been periodically repainted, replaced, or restenciled by employees of the National Park Service, a federal agency, in the interim since 1945. [H . . . Park Service employees . . . testified at the trial in the District Court that not until a year after the occurrence of the accident involved in this appeal did it come to their attention that the tract of land upon which the tulip poplar stood was not federally owned [citation]; for at least ten years prior to the accident the Service undertook to service and maintain the tract as it did Class C federal parkland.” (Ibid., fn. omitted.)

Based upon the foregoing circumstances, the Court of Appeals concluded that the United States Government owed a duty “to use reasonable care to protect passers-by on adjoining public ways from hazardous trees” on the tract of land owned by the Government of India. (Husovsky v. United States, supra, 590 F.2d 944, 952.) The court observed: “The duties owed in connection with the condition of land are not invariably placed on the person in whom the land is titled, but, rather, are owed by the person in possession of the land, [citations], because the occupant or possessor has supervisory control over the activities conducted upon, and the condition of, the land. [U . . . We hold that having assumed such notorious and open public display of control of the tract, the United States had a duty to exercise reasonable care in its supervision thereof . . . .” (Id. at p. 953.)

The same reasoning applies where a plaintiff is injured in a defendant’s fenced backyard by a latent dangerous condition known to the defendant. Under such circumstances, the defendant could not escape liability merely by establishing that the fence was not located on the property line and that a neighbor, rather than the defendant, actually held title to the land containing the dangerous condition. As long as the defendant exercised control over the land, the location of the property line would not affect the defendant’s potential liability.

In the present case, the superior court found that defendants held no legal interest in the land on which the meter box was located. Plaintiff does not challenge that ruling in this court. But summary judgment should not have been granted for defendants, because a triable issue of fact exists concerning whether defendants nevertheless exercised control over the property surrounding the meter box and thus had a duty to protect plaintiff from, or warn him of, the hazardous condition of the meter box. Evidence was introduced establishing that defendants maintained the lawn that covered the approximately two-foot-wide portion of the strip of land owned by the city surrounding the meter box and adjoining their property and that, following plaintiff’s injury, defendants constructed a fence that enclosed the entire lawn, including the portion located on the narrow strip of land owned by the city. From this evidence, a reasonable trier of fact could infer that defendants exercised control over this approximately two-foot-wide portion of the strip of land owned by the city and treated the land surrounding the meter box, which bordered defendants’ property, as an extension of their front lawn.⁴

Justice Brown’s dissent is correct in stating that “property owners are liable for injuries on land they own, possess, or control.” (Dis. opn. of Brown, J., post, at p. 1190.) But her opinion seems to overlook the fact that the phrase “own, possess, or control” is stated in the alternative. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [211 Cal.Rptr. 356, 695 P.2d 653].) A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.

Justice Brown’s dissent would add a requirement, not found in this court’s decision in Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, that a landowner may be held liable for an injury on adjacent property only if the landowner both exercises control over that property and derives a commercial benefit from the portion of the property that caused the injury. (Dis. opn. of Brown, J., post, at pp. 1196-1197.) Such a “commercial benefit” requirement is not found in any decision of this court, but has been discussed by two recent decisions of the Courts of Appeal, Swann v. Olivier (1994) 22 Cal.App.4th 1324 [28 Cal.Rptr.2d 23] and Princess Hotels Internal, Inc. v. Superior Court (1995) 33 Cal.App.4th 645 [39 Cal.Rptr.2d 457]. Prior to these recent decisions, no California case had stated that a property owner could be held liable for an injury caused by a dangerous condition on adjacent property only if the defendant derived a commercial benefit from the adjacent property.

The phrase “commercial benefit” apparently first was used in this context in Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379 [243 Cal.Rptr. 627], which held that a supermarket was not liable for injuries to a customer suffered in a traffic accident that took place on the public street in front of the market. The plaintiff alleged that the market was liable because it used the street and sidewalk “for the commercial benefit of the supermarket for the delivery of goods and as a customer parking area.” (Id. at p. 382.) The Court of Appeal rejected the plaintiff’s reliance upon the concept of commercial benefit and instead based its decision upon the defendant’s lack of control over the public street: “[Although it is indisputable that the scope of premises liability has been greatly expanded in the last 10 years, plaintiff is attempting to extend the duty beyond the premises and into an undefined zone of ‘commercial use.’ The imposition of such a duty is foreign to the concept upon which all premises liability is based, i.e., that possession includes the attendant right to manage and control, thereby justifying the imposition of a duty to exercise due care in the management of the property. [Citations.]” (Id. at p. 386, italics in original.)

The decision in Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656 [250 Cal.Rptr. 57] used the phrase “commercial benefit” in discussing whether there was a triable issue of fact whether a business exercised sufficient control over an adjacent parking lot to support a finding of liability for injuries to a customer who was assaulted a few feet beyond the property line of the store. The attack occurred adjacent to the store in a parking lot that was not owned or leased by the store, but that often was used by the store’s customers. The Court of Appeal noted that the plaintiff’s belief that the store controlled this parking lot “may not have been unreasonable,” observing “that to the extent a greater parking capacity increased sales, then the store realized a commercial benefit from such use of the lot.” (Id. at p. 661.) But it is clear that the Court of Appeal considered such commercial benefit to be but one factor bearing upon the dispositive issue of whether the store exercised control over the adjacent property: “The record reflects evidence, and legitimate inferences therefrom, which would support a jury’s conclusion that petitioners did exercise a sufficient control over the lot so as to legally permit the imposition of a duty to those customers using the lot. For example, (1) only eight marked parking spaces were provided on the store’s premises and these often proved inadequate, (2) customers, including [the plaintiff], regularly used the adjacent lot to park while shopping at the store, (3) petitioners’ lease apparently authorized the nonexclusive use of the adjacent lot for customer parking, (4) petitioners were aware that their customers regularly used the lot and took no action to limit or discourage such use, (5) a reasonable inference can be drawn that petitioners realized a significant commercial benefit from their customers’ use of the lot, (6) the store premises and the adjacent lot had become a hangout for local juveniles, among whom fist fights sometimes broke out, and (7) the store employees had, on a number of occasions, taken action, including the request of police assistance, to remove juvenile loiterers from both the store premises and the adjacent lot.” (Id. at pp. 666-667, fn. omitted.)

The court thus concluded: “Where, as here, there is evidence that petitioners received a commercial advantage from property they apparently had a leasehold right to use (which use by their customers they at least passively encouraged) and where their business was itself the attraction for both customers and loiterers, it is overly simplistic for the issue of control to be resolved solely by reference to a property boundary line and the fortuitous circumstance that the attack on [the plaintiff] took place just 10 feet beyond it. While we can not conclude that these circumstances establish that petitioners did exercise control over the adjacent lot, we do find that they are sufficient to raise an issue of fact that must be resolved by a jury.” (203 Cal.App.3d at p. 667.)

In Lucas v. George T. R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578 [19 Cal.Rptr.2d 436], migrant farm workers, living in a makeshift structure on undeveloped land adjacent to the defendants’ farms, were injured when the structure caught fire. The plaintiffs argued that the defendants owed a duty to make the premises safe or warn of the dangers because they “encouraged the labor camp environment to exist, and gained an economic benefit from it.” (Id. at p. 1589.) The Court of Appeal rejected this approach, relying instead upon the settled rule that “‘[t]he law of premises liability does not extend so far as to hold [the landowner] liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property.’ ” (Id. at p. 1590.)

This was the state of the law when the Court of Appeal decided Swann v. Olivier, supra, 22 Cal.App.4th 1324. The holding in Swann is unremarkable. It held, using language consistent with our holding in the present case, that the owners of a private beach were not liable for injuries sustained by the plaintiff while in the ocean adjacent to the property because the defendants “do not own or control the ocean, and they are not responsible for injuries that take place in that ocean.” (Id. at p. 1326.) The opinion in Swann, however, goes on to observe that, in several instances, businesses have been held liable for injuries that occurred on adjacent property when the business has “received a special commercial benefit from the area of the injury plus had direct or de facto control of that area.” (Id. at p. 1330.) In support of this observation, which is unnecessary to the holding in that case, the court in Swann cites this court’s decision in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, in which the owner of a restaurant was held liable for injuries sustained by a prospective customer while entering an unlit portion of a walkway leading to the restaurant, despite the circumstance that the walkway was not situated within the premises leased by the defendant.

As noted above, this court held in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, 401, “that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.” Nothing in our opinion in Johnston suggests that, in addition to exercising control of the property that caused the injury, the defendant also must derive a commercial benefit from that property. The term “business invitees” was merely a reference to the “rigid common law classifications” of trespasser, licensee, and invitee which we since have abandoned. (Rowland v. Christian, supra, 69 Cal.2d at p. 118.)

The other Court of Appeal decision to propose a “commercial benefit” requirement, Princess Hotels Internat., Inc. v. Superior Court, supra, 33 Cal.App.4th 645, 646, also involved injuries sustained in the ocean adjacent to the defendants’ property and holds, in language consistent with the established rule, “that a hotel has no duty to warn its guests of a dangerous condition of adjacent property over which the hotel has no control, to wit, the ocean currents.” Relying upon the decision in Swann, however, the Court of Appeal went on to note that the circumstance that the hotel derived an obvious commercial benefit from its proximity to the ocean was insufficient to establish liability: “The California cases, as correctly analyzed by Swann, require control as well as a commercial benefit; and the ocean is simply not within the control of humankind.” (Id. at p. 652, italics omitted.) Again, this discussion of commercial benefit is unnecessary to the decision. The absence of liability in that case follows from the defendants’ lack of control over the property that caused the injury.

Justice Brown’s dissent cites no case, and we are aware of none, in which a defendant that exercised control over property on which an injury occurred was found not liable simply because the defendant derived no commercial benefit from that property.

The opinions in Swann and Princess Hotels, and Justice Brown’s dissent, fail to explain why liability for injuries on adjacent property should depend upon whether the defendant derives a commercial benefit from that property. Nothing in our opinion in Johnston v. De La Guerra Properties, Inc., supra, 28 Cal.2d 394, suggests that the result in that case would have been different if, instead of being the owner of a business, the defendant had been a homeowner who had been sued by a social guest whom the homeowner had directed to park on adjacent property and use an unsafe walkway controlled, but not owned, by the homeowner. If a visitor is injured on property controlled by the defendant, liability does not depend upon whether the defendant derived a commercial benefit from the property.⁵ We disapprove any language to the contrary in Swann v. Olivier, supra, 22 Cal.App.4th 1324, and Princess Hotels Internat., Inc. v. Superior Court, supra, 33 Cal.App.4th 645.

C

In the superior court, defendants objected to the evidence introduced by plaintiff reflecting that defendants maintained the lawn on the strip of land owned by the city and, subsequent to the incident at issue, constructed a fence surrounding the entire lawn. Defendants argued this evidence was irrelevant and violated the rule set forth in Evidence Code section 1151 that evidence of subsequent remedial conduct “is inadmissible to prove negligence." (Italics added.) In granting summary judgment for defendants, the superior court sustained defendants’ objections to this evidence.

Plaintiff argued on appeal that these evidentiary rulings were incorrect. The Court of Appeal did not rule expressly on these issues in its opinion reversing the summary judgment, but included in its statement of facts the circumstances that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, had constructed a fence around the entire lawn. On review before this court, neither party briefed the issue of the admissibility of this evidence, and both parties mention in describing the circumstances of the case that defendants had maintained the lawn surrounding the meter box and, subsequent to the incident at issue, constructed a fence around the entire lawn.

We agree with the implied ruling of the Court of Appeal that the superior court erred in excluding this evidence regarding defendants’ maintenance of the lawn and their construction of the fence. This evidence was highly relevant regarding whether defendants exercised control over the strip of land owned by the city.

“ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) As explained above, whether defendants exercised control over the strip of land owned by the city on which the meter box was located is a “disputed fact that is of consequence to the determination of the action.” (Ibid.) Indeed, if defendants exercised control over this strip of land, it appears clear they owed a duty to protect or warn plaintiff.

Evidence that defendants maintained the lawn on the strip of land owned by the city certainly has some “tendency in reason to prove or disprove” whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control.

The circumstance that defendants constructed a fence surrounding the narrow, city-owned strip of land that bordered their property also is highly relevant. It is obvious that the act of enclosing property with a fence constitutes an exercise of control over that property. Code of Civil Procedure section 323, which defines adverse possession under a written instrument or judgment, states that “land is deemed to have been possessed and occupied • • • HD • • • HD 2. Where it has been protected by a substantial enclosure.” In Lofstad v. Murasky (1907) 152 Cal. 64, 69 [91 P. 1008], this court defined “actual possession” of real property as “an appropriation of the land by the claimant such as will convey to the community where it is situated visible notice that the land is in his exclusive use and enjoyment; an appropriation manifested by either inclosing it, or cultivating it, or improving it or adapting it to such uses as it is capable of.” Defendants’ maintenance of the lawn and construction of the fence could support a finding that defendants took possession of the strip of land owned by the city and exercised control over it.

Defendants argued in the superior court that construction of the fence could not be considered in determining whether defendants exercised control over the property because the fence was constructed after plaintiff was injured. We agree that the circumstance that the fence was constructed after plaintiff was injured lessens the probative value of this evidence in demonstrating that defendants were exercising control over the property at the time plaintiff was injured, but it does not render the evidence irrelevant. Defendants’ act of building the fence following plaintiff’s injury is circumstantial evidence that defendants also exercised possession and control over the property at the time plaintiff was injured. (See, e.g., Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555 [85 Cal.Rptr. 308] [“evidence that Taubman’s carpenters installed handrails at the point where Morehouse fell following his injury . . . was properly . . . received by the court... on the issue ... of control of the premises, and as to whose duty it was under the contract to take such safety measures”]; 1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, § 444, p. 413 [“where the issue is whether a defendant was the owner, possessor, or person in control of property involved in the injury, his subsequent repairs (which would scarcely be made by a stranger) may be shown to meet his denial of such control”]; see generally, Annot., 15 A.L.R.Sth 119, 239 [citing cases that hold “that evidence of repairs, improvements, safety precautions, or like remedial or preventive measures taken after an injury may be admitted for the purpose of establishing that at the time of the accident, the defendant owned or controlled the place, thing, or activity which occasioned the injury, at least where ownership or control is controverted, and subject to other appropriate limitations.”].) The circumstance that defendants maintained the lawn on the city’s narrow strip of land both at the time of and following plaintiff’s injury indicates that the construction of the fence subsequent to the injury was but a further, consistent indication of the extent to which defendants treated the city’s property as their own.

As noted above, in Orthmann v. Apple River Campground, Inc., supra, 757 F.2d 909, the court considered a suit for personal injuries brought by a customer of the defendants who was injured diving into a river from land owned by a neighbor of the defendants. In allowing the suit to proceed, the court observed: “What makes this case more difficult than our hypothetical variants is that the defendants do not own the property from which Orthmann dove. But according to an affidavit of one of the Montbriands, which Orthmann included in the appendix to his brief in this court, shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did—the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession.” (Id. at p. 913.)

As noted above, defendants also argued in the superior court that admission of evidence that they constructed the fence after plaintiff was injured violated Evidence Code section 1151, which states: “When, after occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.” This statute does not apply, however, because evidence regarding construction of the fence was admitted, not to prove negligence, but to demonstrate that defendants exercised control over the strip of land owned by the city. As we stated in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118 [117 Cal.Rptr. 812, 528 P.2d 1148, 74 A.L.R.3d 986], “Section 1151 by its own terms excludes evidence of subsequent remedial or precautionary measures only when such evidence is offered to prove negligence or culpable conduct.” (Italics added; see also Fed. Rules Evid., rule 407, 28 U.S.C., which employs language nearly identical to Evidence Code section 1151 and then explains: “This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.”)

Morehouse v. Taubman Co., supra, 5 Cal.App.3d 548, involved the liability of a general contractor for injuries sustained by an employee of a subcontractor when the employee fell from the top of a wall. Among the issues to be determined was whether the general contractor had retained control of the workplace so as to warrant imposition of liability on that contractor for the accident. In recounting the evidence of such control, the Court of Appeal stated: “Taubman [the general contractor] maintained a crew of carpenters whose functions included installing guardrails at [the construction site]; and in practice, at least, provided guardrails and safety devices. There was testimony both that it was Taubman’s policy to place guardrails around openings or edges of slabs above 10 feet in height and that these were installed around the perimeter of slabs where there was a dropoff, regardless of elevation. While evidence that Taubman’s carpenters installed handrails at the point where Morehouse fell following his injury was not admissible to prove negligence of Taubman (Evid. Code, §1151) it was properly limited (Evid. Code, § 355) and received by the court, on the issue of control of the premises, and as to whose duty it was under the contract to take such safety measures. [Citation.]” (Id. at p. 555, italics added, citing Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d 565, 573 [46 Cal.Rptr. 421] [subsequent remedial conduct cannot be considered on the issue of liability, but “is relevant and admissible” on the issues of scope of duty and the possibility or feasibility of eliminating the cause of the accident]; see also Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 796 [182 Cal.Rptr. 855] [section 1151 inapplicable, “[f]or if the subsequent events are offered to prove anything other than negligence or culpable conduct, they are admissible if relevant”]; 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 444, p. 413 [“Where evidence of subsequent precautions or repairs is independently relevant on some issue other than negligence, the policy objection is overcome . . .

In the present case, evidence establishing that defendants constructed the fence after plaintiff was injured would not be admissible at trial to prove that defendants were negligent, but would be admissible to demonstrate that defendants exercised control over the premises. Accordingly, we may consider such evidence in determining whether a triable issue of material fact existed concerning whether defendants exercised control over the strip of land and thus owed a duty of care to plaintiff.

Defendants did not own the narrow strip of land on which plaintiff was injured, but plaintiff has presented evidence suggesting that defendants treated a portion of this strip of land as if they did own it, maintaining a lawn that spanned the property line and that rendered part of the land owned by the city indistinguishable from that owned by defendants, and (subsequent to plaintiff’s injury) demonstrated their possession of this land by constructing a fence enclosing the narrow strip containing the meter box. Standing alone, simply mowing a portion of a lawn belonging to a neighbor may not constitute an exercise of control over the property so as to give rise to a duty to protect or warn persons entering the property of known dangers. But the evidence offered in the present case goes farther and is sufficient to raise a triable issue of fact as to whether defendants exercised control over the strip of land containing the meter box and thus owed a duty of care to protect or warn plaintiff of the allegedly dangerous condition of the property.⁶

III

As should be apparent, we decide only that, based upon the circumstances of the present case, plaintiff has raised a triable issue of fact whether defendants exercised control over the strip of land owned by the city so as to give rise to a duty to protect or warn persons entering the land. It will be for the trier of fact to decide, based upon the evidence received at trial, whether defendants actually exercised such control. We express no opinion as to other issues that will arise, in the event the trier of fact finds that such control was exercised by defendants—including whether defendants breached that duty of care and to what extent, if any, plaintiff’s injuries were caused by his sole or comparative negligence.⁷ Finally, we express no opinion regarding defendants’ right to full or partial indemnity from the city.

The judgment of the Court of Appeal is affirmed.

Mosk, J., Werdegar, J., and Chin, J., concurred.

MOSK, J.

I concur in the judgment and generally with the majority’s reasoning. Contrary to the dissents’ criticisms, today’s decision merely applies settled principles of California law. In that respect, I write separately to explain that a body of law imposing liability for failing to maintain appurtenances to land also favors plaintiff. The principles involved ordinarily appear in tort cases involving appurtenances embedded in sidewalks to benefit adjoining property.

Before discussing the law of appurtenances, however, I explain the basis on which I join the majority opinion. First, although the scope of defendants’ duty to keep the premises in a reasonably safe condition is a legal question for the court (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207]), the trier of fact is to decide whether a breach of that duty caused plaintiff’s alleged injuries (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 [4 Cal.Rptr.2d 145, 822 P.2d 1292]). Nothing in our majority opinion should be interpreted otherwise.

Second, as the majority explain, possession and control govern the scope of that duty. “ ‘[T]he right of supervision and control “goes to the very heart of the ascription of tortious responsibility . . . ” (Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal.Rptr. 817, 720 P.2d 476].)

Whether or not the land containing the meter box was city owned, plaintiff offered enough evidence of defendants’ control of the premises to raise a triable factual question regarding their liability for his injury. He produced evidence that defendants hired someone to mow the lawn. He also produced evidence that defendants put up a picket fence after the accident. This evidence was admissible to show control. (Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555 [85 Cal.Rptr. 308]; cf. Evid. Code, § 1151 [evidence of later remedial measures inadmissible to show earlier negligence or culpable conduct].) Finally, plaintiff produced evidence that an erstwhile neighbor or tenant warned defendant Peter Vece several times about the missing meter box cover. This state of the evidence requires that a trier of fact decide defendants’ liability.

But even if the foregoing evidence were absent, the evidence that defendants neglected to maintain an appurtenance placed on adjoining land for their benefit would suffice to defeat the summary judgment motion. “ ‘The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.’ ” (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 [210 Cal.Rptr. 762, 694 P.2d 1134].)

As alluded to, the question of the duty to maintain an appurtenance ordinarily arises in cases involving traps on sidewalks. At common law an adjoining landowner owed no duty to members of the public to protect against defects in public sidewalks. (Winston v. Hansell (1958) 160 Cal.App.2d 570, 572 [325 P.2d 569, 88 A.L.R.2d 326].) Streets and Highways Code section 5610 creates a duty to maintain a sidewalk, but that duty does not extend to members of the public. (Williams v. Foster (1989) 216 Cal.App.3d 510, 521 [265 Cal.Rptr. 15].) Therefore it appears that the common law rule still applies. (Id. at pp. 515, 521.) But an adjoining landowner nonetheless may be liable “for defects created by special construction for the particular needs of the abutting property.” (Winston v. Hansell, supra, 160 Cal.App.2d at p. 575.) As we have explained, “an abutting landowner may be held liable for the dangerous condition of portions of the public sidewalk which have been altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.” (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 423 [260 P.2d 55], reaffirmed in City & County of S.F. v. Ho Sing (1958) 51 Cal.2d 127, 129 [330 P.2d 802].) The adjoining landowner and the city are jointly and severally liable for injury resulting from such a dangerous condition. (51 Cal.2d at p. 130.)

Potential traps giving rise to such liability include “coal holes, meter boxes, and other devices of similar character located in the sidewalk which benefit the abutting owner and are located where the general public is likely to walk. In those cases, it becomes the liability of the abutting owner to keep such devices in good repair.” (Steen v. Grenz (1975) 167 Mont. 279 [538 P.2d 16, 18]; see also Annot., Liability of Abutting Owner or Occupant for Condition of Sidewalk (1963) 88 A.L.R.2d 331, 399.)

Liability is imposed because emplacements of this type are appurtenances for the benefit of the possessor and controller of adjoining land. (Hamelin v. Foulkes (1930) 105 Cal.App. 458, 462-463 [287 P. 526].) Hamelin is virtually on all fours with this case. In Hamelin, the plaintiff stepped out of an automobile and into a hole created by the defendants’ “failure to maintain a proper covering upon the sidewalk hydrant box in front of [their] store .... The hydrant boxes were cut in the concrete near the curb and were approximately ten inches square.” (Id. at p. 461.) Hamelin found liability because “the hydrant box was solely for the use of appellants’ store and was connected with appellants’ meter, [and] the lease of the store and basement to appellants passed with it the possession and control of the hydrant box as an appurtenance thereto.” (Id. at p. 462.)

Hippodrome Amusement Co. v. Carius (1917) 175 Ky. 783 [195 S.W. 113] also found liability on this basis in a case involving a water service box. “[I]f the unsafe condition of the sidewalk . . . arises from an extraordinary use permitted him [the adjoining landowner] in the use of the sidewalk for purposes of his own, and ... the sidewalk is burdened with a servitude for his benefit or that of his property, and he appropriates the use of the contrivance which constitutes the servitude, he is jointly and severally liable . . . with the city for the injuries sustained by individuals on account of the unsafe condition of the sidewalk.” (195 S.W. at p. 115.) This is so even if it is the city’s duty “to look after and keep in repair the water service boxes throughout the city.” (Ibid.)

The foregoing cases illustrate the principle that “ordinarily an easement or dominant tenement owner has the duty to maintain and repair the easement and the servient tenement owner is under no duty to do so.” (Williams v. Foster, supra, 216 Cal.App.3d at p. 522, fn. 9.) Concomitant with that duty is the right to repair. (Ward v. City of Monrovia (1940) 16 Cal.2d 815, 821-822 [108 P.2d 425]; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 706-707 [43 Cal.Rptr.2d 810]; City of Gilroy v. Kell (1924) 67 Cal.App. 734, 743 [228 P. 400] [easement by prescription].) Thus, the point made in dissent—in essence that there is no evidence sufficient to create a triable issue whether defendants could repair the meter box—is erroneous. Plaintiff produced evidence that, if accepted by the trier of fact, would establish defendants’ right to do so.

Naturally, the reason to hold responsible for pedestrians’ injuries those adjoining landowners who modify sidewalks for their own use is that sidewalks are common thoroughfares, and the presence of passersby is foreseeable. This case differs from Hamelin v. Foulkes, supra, 105 Cal.App. 458, in that the evidence showed the meter box was on a “well kept lawn” a few inches from the sidewalk. Presumably the lawn was not a common thoroughfare for members of the general public. But plaintiff was not a mere passerby who might be thought unlikely to tread on the lawn: he was defendants’ tenant whose use of the lawn the trier of fact could find foreseeable—i.e., he was walking where he was “likely to walk.” (Steen v. Grenz, supra, 538 P.2d at p. 18.)

The summary judgment motion should have been denied because of evidence that defendants controlled the whole lawn, including any part the city may have owned. In the alternative, the motion should have been denied because of evidence that defendants benefitted from a servitude in the form of a meter box on adjoining land on which it was foreseeable that plaintiff might walk. (Hamelin v. Foulkes, supra, 105 Cal.App. 458; see Civ. Code, § 801, subd. 6; see also Wright v. Best (1942). 19 Cal.2d 368, 382 [121 P.2d 702] [Civil Code section 801 does not enumerate all possible servitudes].)

1 Defendants objected to Gray’s declaration on several grounds, and the superior court sustained the objection. Plaintiff argued on appeal that this evidentiary ruling was incorrect. The Court of Appeal did not expressly rule on this issue in its opinion reversing the summary judgment, but included in its statement of facts a quotation from the Gray declaration. Later in its opinion, the Court of Appeal concluded that the Gray declaration was insufficient to raise a triable issue of fact concerning ownership of the land upon which the meter box is located. On review before this court, neither party has briefed the issue of the admissibility of this evidence, and plaintiff does not challenge the Court of Appeal’s conclusion that the Gray declaration was insufficient to raise a triable issue of fact concerning ownership of the land upon which the meter box is located. Accordingly, we express no view regarding the correctness of the superior court’s and the Court of Appeal’s rulings on these issues.

2 Of course, the liability of a possessor of land no longer depends upon the “rigid common law classifications” of trespasser, licensee, and invitee. (Rowland v. Christian, supra, 69 Cal.2d 108, 118.) Instead, we “approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. [Citations.]” (Ibid.)

3 In her dissent, Justice Kennard asserts that a defendant who exercises control over land may be liable for injuries caused by a dangerous condition on the property only if the defendant had the right to control the property. (Dis. opn. of Kennard, J., post, at pp. 1176-1178.) But Justice Kennard cites no case, and we are aware of none, in which a defendant who exercised control over property was held not liable for injuries caused by a dangerous condition of such property simply because the defendant had no right to control the property. It would be anomalous to conclude that a person who wrongfully takes possession of land owned by another, exercising control over that land, cannot be held liable for injuries caused by a dangerous condition of the property.

In her dissent, Justice Kennard asserts that the comment to section 328E of the Restatement Second of Torts, cited above, applies only to persons in the process of gaining ownership of land through adverse possession. (Dis. opn. of Kennard, J., post, at p. 1181.) The comment, while offering such circumstances as one example of possession that is not rightful, does not limit the application of the general principles stated in the comment to such circumstances.

Justice Kennard’s interpretation of section 328E of the Restatement Second of Torts suggests that liability may flow from a wrongful exercise of control over property if such conduct constitutes adverse possession that ultimately will ripen into ownership. (Dis. opn. of Kennard, J., post, at p. 1182.) But this means that the potential liability of an adverse possessor of land depends upon whether that person has satisfied all of the prerequisites for obtaining title, such as paying taxes on the property. (Code Civ. Proc., § 325.) It is difficult to discern why the payment or nonpayment of taxes should affect the liability of a possessor of land for injuries caused by a dangerous condition of the property.

4 In her dissent, Justice Kennard maintains that our holding that there exists a triable issue of fact—as to whether defendants exercised control over the land—is inconsistent with the rule that the existence of a duty is a question of law. (Dis. opn. of Kennard, J., post, at p. 1183.) We agree that “the existence and scope of a defendant’s duty of care is a legal question” for the court to decide (Knight v. Jewett (1992) 3 Cal.4th 296, 313 [11 Cal.Rptr.2d 2, 834 P.2d 696], italics in original), and we have applied that principle by reaffirming the established rule that a person who exercises control over property owes a duty of care to persons injured by a dangerous condition on that property. The determination of this issue, however, does not eliminate the role of the trier of fact. “In an action for negligence the plaintiff has the burden of proving [c][] (a) facts which give rise to a legal duty on the part of the defendant . . . .” (Rest.2d Torts, § 328A, p. 149; O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 749 [51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]; cf. Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 25 A.L.R.Sth 899].) Where a triable issue of fact exists, it is the function of the jury to determine the facts. (Rest.2d Torts, § 328C, subd. (a), p. 154.) We simply hold that a trier of fact could find on the record before us that defendants exercised control over the property on which the meter box was located.

5 Were a “commercial benefit” requirement to exist, its application to the present case would require the resolution of questions including whether residential income property, like that here involved, is a business within the meaning of the rule, and whether the benefit conferred by a water meter (see Justice Mosk’s concurring opinion, post) constitutes a “commercial benefit.”

6 Having concluded that it was improper for the trial court to grant summary judgment in favor of defendants, because a triable issue of fact exists as to whether defendants controlled the property on which the allegedly defective meter box was located, we have no occasion to consider the circumstances, if any, under which a possessor of land may owe a duty to persons using its property to warn them of, or protect them from, hazards on adjacent property that is not owned, possessed, or controlled by the defendant. (See, e.g., Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656 [250 Cal.Rptr. 57]; Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720 [246 Cal.Rptr. 199]; Stedman v. Spiros (1959) 23 Ill.App.2d 69 [161 N.E.2d 590, 597] [In holding that a hotel operator was not liable for injuries sustained by a guest who fell over a precipice in a state park approximately 50 feet from the hotel property, the court observed: “Clearly, if the brink of the precipice were a step or two from the defendant’s door.... we would have a different case than is now presented to us.”].)

7 Justice Brown’s dissent concludes that defendants “did nothing . . . negligent.” (Dis. opn. of Brown, J., post, at p. 1198.) As noted above, the issue whether defendants were negligent is not before us, and we express no opinion on that issue.