John M. Kirby
Landowner Liability — Fence — Hazard on Adjoining Land — Jada Lampkin, James Conrad v. Housing Mgt. Resources
In a case from Moore county, a four-year-old played at the playground at the apartments where she lived. She then went through a broken portion of a chain-link fence owned by the apartment complex. She went to the adjoining land to play on a frozen pond. She fell into the water and sustained a brain injury. She (through her guardian ad litem) and her father sued the the owner, operator and manager of the apartment complex for negligence. The owner of the adjoining land had previously notified the apartmentcomplex that children were coming through the fence onto the adjoining property and that she was concerned that someone would get hurt. An employee of the apartment complex told her that they would “look into the matter.”
The defendants filed a motion to dismiss, which was appealed. The court of appeals affirmed. The essence of the opinion (May 15, 2012) is that a landowner is not liable for an injury caused by a defective condition on adjoining land. The court wrote:
In our view, the foregoing authority clearly estab-lishes that a landowner’s duty to keep property safe (1) does not extend to guarding against injuries caused by dangerous conditions located off of the landowner’s property, and (2) coincides exactly with the extent of the landowner’s control of his property. As such, be-cause Defendants did not control the pond on the adja-cent property, their duty to keep their premises safe did not include an obligation to make the pond safe by pre-venting children on their land from accessing the pond. Rather, the adjacent landowner, with exclusive control over the pond, had the sole duty to keep the pond safe, the only obligation to act, and the only possible liability.
The court rejected an argument that the apartment owners assumed a duty to provide a safe fence, and that the North Carolina Landlord Tenant Act imposed a duty. The court also reasoned largely that the duty to render the adjoining land safe should fall on the owner of the adjoining land, and that to hold the apartments liable would be to “shift” this liability and responsibility. This reasoning is somewhat peculiar. To hold the apartments liable would not necessarily exonerate the owner of the adjoining land; they could be found to both be negligent (and thus be joint torfteasors). Further, the apartments could be deemed to have a claim for indemnification against the adjoining landowners (and they did assert a third-party claim against these landowners). The court noted that other jurisdictions were largely split on the issue presented.
This case can be found at this link: Lampkin v. Housing Management Resources.