During the last month or two there has been a rise of news reports regarding potential earthquakes in California at a greater magnitude than in recent history: see here and here. These risks have even been reported recently in a London newspaper. While the unusual Southern California “big one” warning is now past, the risk has not been eliminated of course. This recent flurry of new reports has brought this topic to the attention of landlords, and stability concerns for one very prominent building and its developer and buyers.
So what is a landlord or developer to do? Understand the law and the obligations in light of the inevitable earthquake in California, including understanding that mere compliance with code, together with seismic retrofitting, is not a ban or bar to a negligence lawsuit. For example, in Myrick v. Mastagni, the court held that statutory compliance is not a complete defense to a negligence action (or any tort action) against the landlord. 111 Cal. Rptr. 3d 165 (2010) (rejecting argument that owner had no duty to retrofit building until deadline set by local ordinance). Myrick arose from the “death of two women who were killed in 2003, when a portion of a building collapsed on them during an earthquake. The women’s survivors sued the building’s owners for negligence in failing to perform seismic retrofitting of the building. The jury found the owners negligent and awarded substantial damages.… On appeal, the defendants contend[ed] they had no duty to retrofit the building until 2018, the deadline established by city ordinance.” Id. at 167. Knowing that California courts have “not looked favorably on the use of statutory compliance as a defense to tort liability,” the court also recognized that such was the case because a statute, ordinance or regulation normally sets only the minimum standard of care. Id. at 169. Importantly, the court ruled that “[a] minimum standard of conduct does not preclude a finding that a reasonable person would have taken additional precautions under the circumstances.” Id.
With that in mind, the basic rule is that an owner must use ordinary care in the management of his or her property to prevent injury to another. Cal. Civ. Code § 1714. And that is tested by a review of the factual circumstances surrounding the property, the injury-causing event, and “whether an owner has acted as a reasonable person in view of the probability of injury. “ Myrick, 111 Cal. Rptr. 3d at 169 (citing Rowland v. Christian, 70 Cal. Rptr. 97 (1968)). For the particular ordinance at issue in Myrick, the clear public policy was stated as the public’s safety and the reduction of personal injury or deaths that “may result from the effects of earthquakes on existing unreinforced masonry bearing wall buildings.” Id. at 171 (quoting city ordinance).
Landowners in areas of California with seismic retrofit ordinances would be wise to evaluate whether they can or should take steps now. Developers too should consider the nature and use of the building and reasonably likely use of neighboring property that may or could impact the stability of a building in a known unstable location. In certain locations, landowners or developers may “pre-certify” a building in case of an earthquake by arranging post disaster building inspections by prequalified licensed structural and civil engineers or architects with special training in emergency structural inspection, thus reducing tenant and business interruptions when the governmental agencies are overwhelmed. See, for example. As aptly put by Sophocles in Oedipus Rex: “I have no desire to suffer twice, in reality and then in retrospect.”