Divine Intervention

“It was an act of God,” is a phrase I hear from time to time. Not from preachers but from landowners, and sometimes their insurance adjusters, trying to avoid liability for injury caused by a natural condition on their land to neighbors.

The question arises: Does a landowner have the duty to remedy a natural condition of land to prevent harm to his or her neighbors? A look back in recent legal history gives us the answer.

In March 1978, heavy rains triggered a major movement of a landslide on a Malibu property owned by the Adamson Companies. The landslide had been evident since the area was first developed in the early 1900s. Just downslope of Adamson’s land, Peter Sprecher had a lovely beach front home, which was destroyed by Adamson’s earth movement. The landslide was a natural condition of the land.

Sprecher sued Adamson, and the case eventually made its way to chief justice Rose Bird and the Supremes. Until that time, the traditional rule was that a possessor of land was not liable for harm caused by a natural condition of his land to anyone outside the premises. While the possessor’s liability for harm caused by artificial conditions was determined by ordinary principles of negligence (a duty to act, a negligent act or failure to act, and resulting damage), the common law gave him an absolute immunity from liability for harm caused by conditions considered natural in origin under the traditional pre-Sprecher rule. 

No matter how great the harm threatened to his neighbor, or to one passing by, and no matter how small the effort needed to eliminate it, a possessor of land had no duty to remedy natural conditions.

Over time, the law changed. Not surprisingly, it started with cases of fallen trees. In the early (1896) New York case of Gibson v. Denton, the court held a possessor of land liable for damage caused when her decayed tree fell on the home of her neighbor during a storm. After noting that the defendant clearly would be liable for the fall of a dilapidated building, or artificial structure, the court stated that there was ” no good reason why she should not be responsible for the fall of a decayed tree, which she allowed to remain on her premises.”

The courts jettisoned the old common-law rule in its entirety and replaced it with a single duty of reasonable care in the maintenance of property. Nowadays, a possessor of land may be subject to liability for harm caused not just by trees but by any natural condition of the land.

What guides whether the landowner will be held liable? The question is whether in the management of his property he has acted reasonably under all the circumstances. The major factors are: (1) the likelihood of injury to plaintiff, (2) the probable seriousness of such injury, (3) the burden of reducing or avoiding the risk, (4) the location of the land, and (5) the possessor’s degree of control over the risk-creating condition. All these factors apply not just to trees but to other natural features of land.

The modern rule doesn’t only apply in urban and suburban areas. Rather, the duty of reasonable care for the protection of those outside the premises against natural conditions applies even in rural areas.

In other words, you can’t just let nature take its course. Where a planted tree has become dangerous to adjoining land, and causes harm, the fault lies not in the planting of the tree but in permitting it to remain after it has become unsafe.

Historically, the consideration most frequently invoked to support the rule of nonliability for natural conditions was that one should not be obligated to undertake affirmative conduct to aid or protect others. This doctrine rested on the common law distinction between the infliction of harm and the failure to prevent it, or misfeasance versus nonfeasance. Liability for nonfeasance, or the failure to take affirmative action, was ordinarily imposed only where some special relationship existed between the plaintiff and defendant.

In the Sprecher case, the Supreme Court rejected that idea when it came to natural conditions of land. Whatever the rule may once have been, it is now clear that a duty to exercise due care can arise out of possession alone. Possession ordinarily brings with it the right of supervision and control, which, as justice Stanley Mosk once stated, “goes to the very heart of the ascription of tortious responsibility.”

So, where does this leave us? Every landowner is responsible for any injury caused to another by his or her lack of ordinary care or skill in the management of his or her property. Mere possession of land with its attendant right to control conditions on the premises imposes an affirmative duty to act, and the historical justification for the rule of nonliability for natural conditions has lost whatever validity it may once have had. A person’s life or limb or property does not become less worthy of legal protection nor a loss less worthy of compensation because that person has been injured by a natural, as opposed to an artificial, condition.

If your neighbor’s failure to maintain his or her land has resulted in damage to your property, don’t assume that its an act of God (or of Edison). You may have recourse against your neighbor, who likely has liability insurance to cover your loss.

The California Supreme Court doesn’t believe in the “act of God” defense. So, if your neighbor’s debris flowed onto your property on January 9, you may want to talk to a landslide lawyer.

This is the 10th in a series of articles about the law and the Montecito mudslides. You can read the first nine articles on montecitojournal.net and cal-landslidelaw.com, or email me: blum@blumcollins.com.