Wylie v. Gresch

191 Cal. App. 3d 412, 236 Cal. Rptr. 552, 1987 Cal. App. LEXIS 1615

• Court: California Court of Appeal
• Decided: April 27, 1987
• Docket: A017402
• Status: Published

Opinions

OPINION

We hold that a landlord has no duty to warn a prospective tenant of the presence of a vicious dog in the neighborhood.

The Wylies, parents and minor children, appeal from a judgment of dismissal of their action against their landlords, the Gresches, for damages resulting from an attack on one of the Wylie children by the vicious dog owned by neighbors living next door to the rented premises. In their complaint the Wylies also allege various causes of action against their neighbors, who were also tenants, and against the owner of their neighbors' premises; these defendants are not parties to the appeal. The Wylies maintain that the trial court erred in sustaining, without leave to amend, a demurrer to the causes of action against their own landlords. We affirm the judgment.

(1) The function of a demurrer is to test the sufficiency of plaintiffs' pleading by raising questions of law. (Glaire v.La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918 [117 Cal.Rptr. 541, 528 P.2d 357]; see 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 894, p. 333.) Solely for that purpose, a demurrer admits all properly pleaded material facts, but it does not admit conclusions of law. (5 Witkin, Cal. Procedure, Pleading, supra, at § 898, p. 338.) Thus, our only concern in this case is whether plaintiffs have stated a cause of action against their landlords for violation of a duty to protect or to warn the Wylies, as prospective tenants, against the potential harm from the vicious dog owned by the next-door neighbors.

(2) Whether the trial court abused its discretion in refusing to allow amendment to the complaint hinges on whether it was "a reasonable possibility" for plaintiffs to cure any defect by amendment. (La Sala v. American Sav. Loan Assn. (1971)5 Cal.3d 864, 876 [97 Cal.Rptr. 849, 489 P.2d 1113]; 5 Witkin, Cal. Procedure, Pleading, supra, at § 945, p. 379.) Therefore, we include in brackets facts argued to or included in the record before the trial court which presumably could have been amended into the complaint. (See Tarasoff v. Regents of University ofCalifornia (1976) 17 Cal.3d 425, 432, fn. 3, 433 [131 Cal.Rptr. 14,551 P.2d 334, 83 A.L.R. 3d 1166] [hereafter cited asTarasoff].)

The Complaint The third cause of action reveals the following facts. Defendants Joseph Gresch and Ann Gresch owned residential property at 85 Essendon Street in San Jose. At the time of the incident in question, October 19, 1981, they owned, managed, operated, maintained, and controlled the premises. [Approximately two months prior to that date, plaintiffs Donald Wylie and Linda Wylie, husband and wife, had leased the premises from the Gresches and had moved in with their three minor children.] The minor children of the Wylies were: Teresa [age 12], the dog bite victim; Sharon [age 14]; and Helen [age 17], who were also plaintiffs. [The Gresches, as landlords, had a special relationship, landlord-tenant, with each of the plaintiffs and owed them a duty of care.]

Defendants Michael Buzzell and Tammy Buzzell lived next door at 83 Essendon Street, which they rented from defendant Richard Houston, who owned and managed the property. The Buzzells owned a pit bull dog,¹ which "had attempted to attack persons, had attacked other dogs and animals in the neighborhood, and had damaged property and otherwise shown vicious propensities." [On one occasion the dog had broken through a fence and chased a neighbor into her house. The dog "had virtually run rampant throughout the neighborhood."]

[Before appellants moved in, the dog had broken through the fence which separated the backyards of the two properties. The fence separating 83 and 85 Essendon had been damaged by this incident, and the Gresches had arranged for its repair prior to the Wylies' renting the premises.]² Thus, the Gresches "had actual [and constructive] knowledge of the [dog's] vicious propensities. . . ." Nevertheless, they "failed to warn [the Wylies] of the danger of said dog, and of its vicious propensities and failed to file a formal complaint and take other available measures to have the Santa Clara County Animal Control Division, or other appropriate governmental entities, cause the removal of said dog from . . . 83 Essendon Street. . . ."³

On the day in question, Teresa Wylie was "at or near her residence,"⁴ and the dog was "in the possession of" defendants Buzzell. [The dog "came onto the property at least initially on a leash, but the dog broke off the leash."] Michael Buzzell "invited and permitted" Teresa Wylie to pet the dog. The dog then bit off the child's ear and inflicted other severe injuries.

The sixth and eighth causes of action allege that Teresa Wylie's mother and sisters suffered injuries as a result of witnessing the attack, and Donald Wylie suffered loss of consortium with his wife, Linda.

Discussion (3) The elements of a cause of action for negligence are commonly stated as (1) a legal duty to use due care; (2) a breach of that duty; (3) a reasonably close causal connection between that breach and the resulting injury; and (4) actual loss or damage. (Prosser Keeton, The Law of Torts (5th ed. 1984) § 30, pp. 164-165 [hereafter cited as Prosser Keeton]; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488, p. 2749.)

The principal question here focuses on the first element, that of duty. (See generally, Comment, The Death of Palsgraf: AComment on the Current Status of the Duty Concept in California (1979) 16 San Diego L.Rev. 793.) (4) Whether a legal duty exists in a given case is primarily a question of law. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342 [134 Cal.Rptr. 375,556 P.2d 737].) (5) In the typical negligence action, a determination that there is no "duty" giving rise to liability is essentially a shorthand way of expressing the conclusion that the weight of public policy warrants a departure from Civil Code section 1714, subdivision (a), which broadly imposes liability on "[e]very one . . . 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, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself [or herself]. . . ." (See Tarasoff, supra, 17 Cal.3d at p. 434; Rowland v. Christian (1968) 69 Cal.2d 108, 111-113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R. 3d 496].) This weight of public policy is measured by balancing these major considerations: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Rowland, supra, at pp. 112-113.) Appellants argue that a "duty" exists in light of these considerations.

Formerly, the duty, and resulting liability, of landlords out of possession was quite limited. They had "no general duty to keep the premises in safe condition after transfer of possession . . . [and were] ordinarily not liable for injuries to a tenant or [the tenant's] invitees, or to strangers, resulting from the defective condition of the premises, even though by the exercise of reasonable diligence [they] might have discovered the defects. [Citations.]" (3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, § 453, pp. 2135-2136; Prosser Keeton, supra, at § 63, p. 436.) There were a number of exceptions to this general rule which covered cases such as those in which the landlord had knowledge of a latent defect and failed to warn the tenant, or where the landlord retained control over common areas and failed to keep them safe. (3 Witkin, Summary of Cal. Law, Real Property,supra, at §§ 456, 460, pp. 2139, 2143-2144.) This latter exception has been extended to impose a duty on landlords to protect tenants from criminal acts of third persons under certain circumstances. (See Prosser Keeton, supra, at § 63, p. 442.)

For example, in Kwaitkowski v. Superior Trading Co. (1981)123 Cal.App.3d 324 [176 Cal.Rptr. 494], plaintiff was assaulted and raped by a nontenant in the dimly lit lobby of her apartment building. The front door lock was defective, and the building was in a high crime area. The landlord was aware of the defective lock and of the intrusions of nontenants into the building. The landlord also knew that a similar assault had occurred in a common area of the building two months previously. (Id., at p. 326.) The court found, consistent with the Rowland rule, that, under the circumstances, the landlord could foresee that similar assaults would occur. (Id., at pp. 328-329.)

In Penner v. Falk (1984) 153 Cal.App.3d 858 [200 Cal.Rptr. 661], plaintiff tenant was assaulted by two nontenants in a common hallway of his apartment building. (Id., at pp. 860-861.) The Court of Appeal reversed the decision of the trial court which had sustained defendant's demurrer, because the court found that the landlord knew of previous crimes in the building and that the landlord failed to correct known defective conditions which permitted free entry into the building. (Id., at pp. 866-867.)

This extension of duty is not unlimited, however. Totten v.More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538 [134 Cal.Rptr. 29], held that a landlord was not liable for harm caused by a gunfight in the laundry room of an apartment building, where the defendant had no reason to anticipate the sudden occurrence. (Id., at pp. 541-542.) Similarly, a landlord is not liable for damage caused to a tenant raped in her apartment merely because the landlord has knowledge of crime in the "`general area.'" (7735 HollywoodBlvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 903-905 [172 Cal.Rptr. 528]; see generally, 3 Witkin, Summary of Cal. Law (8th ed. 1984 supp.) Real Property, § 457C, pp. 283-284; 4 Witkin, Summary of Cal. Law (8th ed. 1984 supp.) Torts, § 596A, pp. 380-382.)

The limitation in these cases appears to be based not upon the particular knowledge attributable to the landlord (e.g., prior crimes), but upon the foreseeability factor in general. Under the decision in Isaacs v. Huntington Memorial Hospital (1985)38 Cal.3d 112 [211 Cal.Rptr. 356, 695 P.2d 653], holding a hospital liable for damages resulting from an assault on a doctor in a parking lot which the hospital owned, maintained, and controlled, knowledge of previous crimes is no longer a condition precedent to landowner liability, because foreseeability is now viewed as "but one factor to be weighed in determining whether a landowner owes a duty in a particular case." (Id., at p. 125.) "`[W]hat is required to be foreseeable is the general character of the event or harm . . . not its precise nature or manner of occurrence.' [Citation.]" (Id., at p. 129, quoting Bigbee v.Pacific Tel. Tel. Co. (1983) 34 Cal.3d 49, 57-58 [192 Cal.Rptr. 857, 665 P.2d 947] [telephone company liable for negligent placement of phone booth hit by drunk driver].)⁵

Although the defendant in Rowland v. Christian, supra,69 Cal.2d 108, was an occupier of land, the holding in that case regarding the statutory duty of due care has been extended and now applies to owners out of possession. (Brennan v. CockrellInvestments, Inc. (1973) 35 Cal.App.3d 796, 800 [111 Cal.Rptr. 122] ;⁶ accord Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467 [213 Cal.Rptr. 213, 698 P.2d 116, 48 A.L.R. 4th 601]; see 3 Witkin, Summary of Cal. Law (8th ed. 1984 supp.) Real Property, supra, § 453A, p. 279 et seq.) Thus the cases following Rowland and applying Civil Code section 1714 have greatly expanded the area of landlord liability. (See generally, Frances T. v. VillageGreen Owners Assn. (1986) 42 Cal.3d 490, 519, 521-524 [229 Cal.Rptr. 456, 723 P.2d 573] (conc. and dis. opn. of Mosk, J.).) Now a landlord who leases dwellings may be liable for dangerous latent conditions on the land of which the landlord is unaware, either because of a duty to inspect for them or based upon strict liability for latent defects. (Becker v. IRM Corp., supra, 38 Cal. 3d at pp. 464, 469.)

A landlord may also be held liable for misrepresentation. InO'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798 [142 Cal.Rptr. 487], a tenant who was raped in her apartment sued her landlords on theories of negligence and deceit. The landlords knew that several rapes had been committed in the complex by the same suspect. Upon renting the apartment, the landlords not only failed to advise the tenant of the crimes, but they assured her that the premises were safe and were patrolled at all times. The tenant relied on these statements when she rented the apartment. (Id., at pp. 801-802.)

Division Four of this court held that the tenant had stated causes of action for negligence and for deceit. The negligence cause was stated in alleging that (1) the landlords had failed to provide adequate security against the same harm that had been repeatedly inflicted on other tenants, and (2) in failing to apprise her of the danger. The fact that the assault occurred in her apartment did not remove the first theory of liability for negligence, because "[f]ailure to take reasonable precautions to safeguard the common areas under [the landlords'] control could have contributed substantially, as alleged, to appellant's injuries. [Citation.] Also [as to the second basis], [the landlords'] liability for failure to warn is not founded upon their control over the common areas but upon their position of superior knowledge and upon their alleged misrepresentations." (Id., at p. 803.)

Thus, although historically a landlord out of possession had limited responsibility for the rented premises, cases subsequent to Rowland have expanded the duty of such a landlord to ensure the safety of the premises. No case that we have found, however, imposes a duty on a landlord to protect against dangerous conditions off the premises (that is, in the neighborhood), or against dangerous persons (or animals) over which the landlord has no control, which come onto the property in a location or manner over which the owner has no control.⁷ In Mark v.Pacific Gas Electric Co. (1972) 7 Cal.3d 170, 175, 179 [101 Cal.Rptr. 908, 496 P.2d 1276], for example, landlords who owned and controlled an apartment were properly granted a nonsuit because they had no ownership and control over a streetlight which electrocuted a tenant who stood on the fire escape while attempting to take out a glaring light bulb. And in Preston v. Goldman (1986) 42 Cal.3d 108, 110-111, 126 [227 Cal.Rptr. 817, 720 P.2d 476], a former owner was not liable for injuries suffered by a child who nearly drowned in a pond, a patent defect created by the former owner, because possession and control of the premises had ended.

Here there is no allegation that the landlords negligently maintained⁸ their property or that there was a defect on the premises that was a cause of the injuries. Uccello v.Laudenslayer (1975) 44 Cal.App.3d 504 [118 Cal.Rptr. 741, 81 A.L.R. 3d 628], upon which the Wylies rely, is distinguishable from this case. There, the court pointed out that, while traditionally landlords out of possession had been insulated from liability in many cases, modern law created exceptions to the nonliability where the landlord retains control over his or her own premises and therefore the right to obviate the condition and prevent injury. (Id., at p. 511.) The court held that the landlord owed a duty of care to a tenant's invitee to prevent injury from a vicious dog kept by the tenant on the leased premises where the landlord had actual knowledge of the presence of the animal and the right to control the premises by removing the tenant and retaking possession of the premises. (Id., at p. 512.)

Here, by contrast, the dog was kept by strangers to the landlords on premises over which the landlords had no control. Therefore, the complaint alleged no facts which would give rise to liability under Civil Code section 1714 or the cases construing it. As stated by the trial court, ". . . there is no allegation that Defendants Gresch could have foreseen or prevented, by any maintenance of their property, the injury here suffered by [the] minor child."

(6) Aside from the statutory duty of care imposed by Civil Code section 1714, some situations give rise to a common law duty affirmatively to disclose a danger created by a third person. (See 4 Witkin, Summary of Cal. Law, Torts, supra, at §§ 488, 554-555, 615, pp. 2750, 2821-2822, 2895-2896; 3 Witkin, Summary of Cal. Law, Real Property, supra, at §§ 456, 457, pp. 2139-2141.) Appellants, however, have failed to establish that the Gresches violated the common law duty to warn.

"[W]hen the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim." (Tarasoff, supra, 17 Cal.3d at p. 435; see Rest.2d Torts, §§ 314, 314A.) Prosser and Keeton explain the rule in this way: "The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons." (Prosser Keeton, supra, at § 56, p. 383, fn. omitted; see Rest.2d Torts, § 315.)⁹ This is followed with a series of examples which include disputes between carrier-passenger, employer-employee, jailer-prisoner, hospital-patient, school-pupil, and landlord-tenant. (Prosser Keeton, supra, at § 56, p. 383.) The fact that the previous edition of this standard text did not include landlord-tenant in the special relationship category demonstrates the recent trend apparent in the common law of this country. (See Prosser, The Law of Torts (4th ed. 1971) § 56, p. 349.)

Although disputes between landlord and tenant (or lessor and lessee) appear to be on the rise, we have found no published decision in any jurisdiction which has directly confronted the question at bench. Nor does it even seem settled in this jurisdiction that the relationship between two such parties is of the "special" kind giving rise to a duty to warn of conduct of third persons. Nevertheless, a trend away from the traditional application of the doctrine of caveat emptor to lessees is apparent, so that Prosser and Keeton report, "Modern ideas of social policy have given rise to a number of exceptions to these general rules of nonliability of the lessor, which to a large extent swallow up the general no-duty rule." (Prosser Keeton,supra, at § 63, p. 435.)

It is instructive to examine the leading decisions concerning special relationships and the duty to warn. In Tarasoff, the Supreme Court found that a special relationship existed both between a psychotherapist and patient and the therapist and a known identifiable potential victim of the patient, such that a warning of danger should have been given. (Tarasoff, supra,17 Cal.3d 425, passim.) In Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], the California Youth Authority (CYA) placed a juvenile with known homicidal tendencies in a foster home but gave no warnings of the danger. The court found that the state had a duty to warn the foster parents whom it placed in danger of the foreseeable peril created by the CYA's acts. (Id., at pp. 784-786.) Similarly, in Mann v. State of California (1977) 70 Cal.App.3d 773 [139 Cal.Rptr. 82], a highway patrol officer offered assistance to stranded motorists and protected them with his flashing lights. He then abandoned the scene without warning, and they were injured when one of their vehicles was sideswiped by a passing car. (Id., at pp. 776-777.) The court found a special relationship and a duty to protect the motorists. (Id., at p. 780; see Rest.2d Torts, § 324; but see Gov. Code, § 820.25.) In Johnson and Mann a special relationship was established by defendants' placing plaintiffs in peril, which required the defendants to warn the particular plaintiffs of danger or to protect them from negligence or intentional acts of third persons. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 207-208 [185 Cal.Rptr. 252, 649 P.2d 894].)

Thompson v. County of Alameda (1980) 27 Cal.3d 741 [167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R. 4th 701] provides an example of an absence of duty to warn. There, the defendant county released to the custody of his mother a dangerous juvenile who had indicated he would kill some child in the neighborhood. Within 24 hours he did in fact kill plaintiffs' child. (Id., at p. 746.) Although the county had a special relationship with the juvenile, the Supreme Court found that it had no duty to warn plaintiffs, the police, the mother of the juvenile, or other local parents, both because it had no special relationship with them, and because it did not "knowingly place the specific [victim] into a foreseeably dangerous position." (Id., at p. 751.)

Quoting Tarasoff, the Thompson court noted that a special relationship "`may support affirmative duties for the benefit of third persons.' [Citation.]" (Id., at p. 752, italics added by the Thompson court.) But the court refused to find the duty to warn where there had been "nonspecific threats of harmdirected at nonspecific victims." (Id., at p. 754, original italics.)

Similarly, in Davidson v. City of Westminster, supra,32 Cal.3d 197, the court found no special relationship between police officers who had a laundromat under surveillance and a female patron who was a potential victim of a man who had previously stabbed women in similar circumstances there. (Id., at pp. 200-201.) The court stressed the absence of two aspects, at least one of which was found in cases other than Tarasoff where a duty to warn was imposed: creation of the danger by the defendant, and reliance by the victim on the defendant. (Id., at p. 208.)

The Davidson court posited that requiring the police to warn the crime victim would have to be premised "on the theory that she was a potential victim of a potential assailant, necessarily imply[ing] a general duty to warn other potential victims in the vicinity. (See Thompson v. County of Alameda, supra, 27 Cal.3d at p. 758.) While under some circumstances the police may conclude that such a course of conduct is prudent and necessary, our past decisions teach that it is inappropriate to impose such a duty — which may paralyze a neighborhood — under pain of tort liability. [Citation.]" (Davidson v. City ofWestminster, supra, 32 Cal.3d at pp. 208-209.)

Here there is no indication in the pleadings that the Gresches created a dangerous situation. Nor is there any reason to believe that the Wylies relied on the landlords to warn them of any possible danger. This fact distinguishes the case at bench fromO'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798. A landlord is not an insurer of a tenant's safety, even from dangers which come onto the land. (7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d 901, 905; and see, e.g., Tarle v. Park Drive Realty (1941) 308 Mass. 550 [33 N.E.2d 266] [tenant attacked by rats in garbage area; landlord not insurer against their presence, having no control over where they came from]; American Marine Upholstery Co. v. Minsky (Tex. Civ.App. 1968) 433 S.W.2d 717 [no duty to volunteer information that nearby creek periodically flooded; no deceit where information not suppressed].)

Although it may be that a special relationship exists between landlord and tenant, it would be unreasonable to extend the resulting duty in the landlord beyond the duty imposed on landlords to disclose defective conditions on their leased premises; and in cases involving that type of defect the rule is universally understood to be that before a duty is found, ". . . The lessor must . . . have reason to believe that the lessee will not discover the condition, or that [the lessee] will not realize the risk. The lessor is under no duty to warn the lessee of a condition which [the lessor] reasonably believes that the lessee will discover, or of the extent of the risk involved in an obvious condition, unless [the lessor] should realize that the lessee is unlikely to appreciate it." (Rest.2d Torts, § 358, com.b.)

In Hanson v. Luft (1962) 58 Cal.2d 443 [24 Cal.Rptr. 681,374 P.2d 641], for example, a five-year-old child brought suit to recover damages for injuries she suffered when her pajamas were ignited while she was standing near an open gas heater in an apartment rented by her parents from defendants. (Id., at p. 444.) The Supreme Court affirmed judgment entered for defendants after the trial court sustained their demurrer without leave to amend. The court said, "It is the settled rule that while a landlord is under a duty to warn the tenant of any hidden danger or defect in the leased premises of which he [or she] has knowledge [citations], there is no duty to warn the tenant of obvious and patent defects and dangers [citations]." (Id., at p. 445.) The danger in question, the court observed, "must have been as obvious to the tenant-parents of the . . . plaintiff as it was to the defendants-landlords." (Id., at p. 446.) Even though the landlords had similar previous experience with the appliance (a similar injury to a minor), responsibility for the child's safety did not shift from the parents, to whom the danger must have been apparent. (Id., at pp. 446-447.)

Prosser and Keeton state: "There is of course no duty to disclose conditions which are known to the tenant, or which are so open and obvious that [the tenant] cannot reasonably be expected to fail to discover them when he [or she] takes possession, or are of a kind, such as a flight of steps, or poison ivy on a campsite, which anyone might expect to encounter upon similar premises, and therefore to look out for himself [or herself]." (Prosser Keeton, supra, at § 63, p. 436, fns. omitted; cf. § 33, p. 207 [failure to disclose existence of known danger actionable where plaintiff is expected to rely on appearance of safety]; Becker v. IRM Corp., supra, 38 Cal.3d 454 [latent defect]; see also 3 Witkin, Summary of Cal. Law, Real Property, supra, at § 457, p. 2140.)

That is precisely the situation here. Landlords in respondents' position could reasonably expect that appellants would discover the presence of the dog for themselves, and, unfortunately, a vicious dog is a danger one might expect to encounter anywhere in our society.

Furthermore, even if there is a special relationship between landlord and tenant, it would be unreasonable to extend it beyond the basis of the relationship, the subject property. Insofar as dangers in the neighborhood are concerned, the tenant's position is no different from that of any member of the general public. Neither the tenant nor members of the public rely on a landlord to warn them of such dangers. While the law has progressed far in the direction of finding duty where there is dependence (e.g.,Mann v. State of California, supra, 70 Cal.App.3d at pp. 779-780; Rest.2d Torts, § 314A), it does not require a general warning such as that urged by appellants here. (See Bill v.Superior Court (1982) 137 Cal.App.3d 1002, 1013 [187 Cal.Rptr. 625], citing Davidson v. City of Westminster, supra, 32 Cal. 3d at pp. 208-209.)

In our view, creation of a requirement that landlords warn prospective tenants of dangers in the neighborhood would "produce a cacaphony [sic] of warnings that by reason of their sheer volume would add little to the effective protection of the public." (Thompson v. County of Alameda, supra, 27 Cal.3d at pp. 754-755.) Furthermore, such a requirement would place the landlord in the position of being a purveyor of gossip and warnings that are groundless. Public policy does not dictate that a landlord should warn a prospective tenant of every potential danger in the neighborhood. We conclude that the trial court properly sustained the demurrer.

Teresa Wylie was the victim of a tragic event, the blame for which may lie with the owners of a vicious animal who were unwilling or unable to control it, and with any of a number of other people. The law, however, does not include the Gresches among them, and we decline to stretch the limits of legal duty in order to do so.

Appellants have failed to state a cause of action.¹⁰ The judgment is affirmed.

Scott, J., concurred.

¹ "Pit bull" is another name for the pit bullterrier or bullterrier (Webster's New Internat. Dict. (3d ed. 1970) p. 1724), which is defined as "a short-haired terrier of a breed originated in England by crossing the bulldog with terriers to develop a dog of speed, hardihood, and powerful bite for use in dog fights. . . ." (Id., at p. 295.)

In their complaint, appellants allege that the Buzzells owned a black pit bull dog named "Bud," which is the dog they allege attacked Teresa. In their briefs, they allege that the Buzzells owned two pit bulls, one brown and one black, both vicious.

² In their opening brief appellants state that before, during, and after execution of the lease agreement, "[t]he fence . . . bore evidence of ripping, tearing and chewing and was repaired on several occasions by nailing more boards on top of the holes and weak points."

³ On appeal, the Wylies have abandoned their claim that respondents had a duty under Civil Code section 3342.5, subdivision (b), to have the dog removed. That subdivision provides: "(b) Whenever a dog has bitten a human being on at least two separate occasions, any person, the district attorney, or city attorney may bring an action in the municipal court against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by such animal. This action shall be brought in the county where a bite occurred. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary."

⁴ Appellants in their opening brief state that Teresa was standing on the driveway of appellants' residence when bitten. At the hearing on the demurrer, respondents' counsel asserted that the incident occurred on the sidewalk, which was city property, to which appellants' counsel replied that the court had to rely on the allegation in the complaint that "the bite occurred on the premises. . . ." Because of the ambiguity relating to the location of the occurrence, we have set out the location as alleged in the complaint.

⁵ Although it did not involve a landlord-tenant situation,Isaacs is instructive on the relative importance of foreseeability in this and other cases. We note that whileRowland eliminated rigid adherence to classifications of duty based on status, "plaintiff's status is relevant under certain circumstances to the question of liability. [Citation.]" (Peterson v. San Francisco Community College Dist. (1984)36 Cal.3d 799, 808, fn. 5 [205 Cal.Rptr. 842, 685 P.2d 1193] [college liable for failure to warn student of danger of reasonably foreseeable assault on campus], citing Beauchamp v.Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 25 [77 Cal.Rptr. 914].)

⁶ The Brennan court said: "The trend in other jurisdictions is to follow the lead set by California in applying ordinary rules of negligence to tort cases involving owners and occupiers of land. [Citations.] If this trend continues, questions of possession and control, answers to which have been prerequisite to even a consideration of the negligence of an owner or occupier of land, will everywhere be relevant only as they bear on such basic tort issues as the foreseeability and unreasonableness of the particular risk of harm. The direction the law is now taking clearly is toward `"imposing on owners and occupiers a single duty of reasonable care in all the circumstances."' [Citations.]" (Brennan v. Cockrell Investments, Inc., supra, 35 Cal.App.3d at pp. 801-802.)

⁷ O'Hara v. Western Seven Trees Corp., supra, 75 Cal.App.3d 798, does not compel a different conclusion. For that decision to be read as one involving a simple "failure to warn" is to read too much into it, and to leave too much out. The crucial fact there was the misrepresentation coupled with the failure to warn of a specific set of similar crimes which had been perpetrated over a period of time and which were alleged to involve access through a common area over which the landlords maintained control.

⁸ Paragraph 5 of the third cause of action of the complaint alleged that the landlords herein "negligently and carelessly failed to operate, manage, maintain, and control the said premises . . . so as to remove the danger of said dog . . .," but, as noted above, they have abandoned their claim that respondents had a duty to have the dog removed. (See fn. 3,ante.) We do not read the complaint as alleging negligent maintenance of the property in any other respect.

⁹ The Restatement Second of Torts section 315 provides: "There is no duty so to control the conduct of a third person as to prevent him [or her] from causing physical harm to another unless [¶] (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or [¶] (b) a special relation exists between the actor and the other which gives to the other a right to protection."

¹⁰ In their brief, appellants urge only that they should have been granted leave to amend their complaint to allege that the landlords had constructive knowledge of the vicious dog next door. We have added that proposed amendment as well as other possible amendments in brackets in our statement of facts in order to consider fully the legal theories under which appellants might state a cause of action. The court did not err in denying leave to amend the complaint.