Lampkin v. Housing Management Resources, Inc. (Lawyers Weekly No. 12-07-0529, 21 pp.) (Linda Stephens, J.) Appealed from Catawba County Superior Court. (Eric L. Levinson, J.) N.C. App. Full-text opinion.
Holding: There was a hole in the fence surrounding an apartment complex’s playground. A resident’s child went through the hole to a frozen pond on neighboring property, fell through the ice, and was injured. The apartment complex is not liable for an injury the child sustained on someone else’s property.
We affirm the trial court’s order granting defendants’ motion to dismiss.
We disagree with plaintiffs’ contention that a landowner’s duty of reasonable care extends to guarding against injury caused by a dangerous condition on neighboring property. The imposition of such a duty would be contrary to public policy and the established law of this state.
Imposing a reciprocal duty on a landowner adjoining property with a dangerous condition would impermissibly shift the burden of making that condition safe from the owner of that condition, who has exclusive control over the use of her land, to the owner of the adjacent property, who has no control.
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 with the extent of the landowner’s control of his property. Because defendants did not control the pond on the adjacent property, their duty to keep their premises safe did not include an obligation to make the pond safe by preventing 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.
Plaintiffs contend that, despite the nonexistence of a duty to erect a fence, defendants had a duty “to maintain a fence already existing.” We disagree.
The same reasons that support the conclusion that defendants had no duty to erect a fence to protect against injury at the pond likewise support the conclusion that defendants had no duty to mend their fence.
Plaintiffs next contend that, even if a landowner generally has no duty to properly maintain a fence and prevent access to a neighboring pond, defendants in this case assumed that duty by “embark[ing] on a course of conduct … of actively erecting and/or utilizing a perimeter fence for the purpose of security and containment of children residing in the apartments.” Again, we are unpersuaded.
The “voluntary undertaking” doctrine only applies where there is some showing of an act or acts by the defendant indicating that the defendant actually engaged in some undertaking.
The only allegations in plaintiffs’ complaint that arguably relate to an undertaking by defendants are the following: (1) the fence “served to secure the apartment campus as well as provid[e] a level of containment for the many children residing in the apartments”; (2) when the owner of the pond informed an employee in the apartment complex office that children were coming on to her property, “She was advised by the [employee] that they would look into the matter”; and (3) “the fence was owned by [the apartment complex].” These allegations are insufficient to show that defendants acted in any way that could constitute an undertaking; thus, they are insufficient to support application of the voluntary undertaking doctrine.
First, absent some allegation that defendants intended for the fence to have those effects or maintained the fence for those purposes, the allegation that the fence served to secure and contain is insufficient to support application of the doctrine.
Second, the apartment complex employee’s statement that “they would look into the matter” is wholly noncommittal.
Mere ownership of a fence is insufficient to show that defendants undertook to prevent children’s access to the neighbor’s pond.
There is nothing in the complaint which could support an inference that defendants erected the fence to remedy a known dangerous condition. The bare fact of defendants’ ownership of land on which a fence is located is insufficient to show that, in this case, defendants undertook to provide to plaintiffs the service of preventing children’s access to the neighboring pond.
Finally, plaintiffs allege defendants had a duty to maintain the fence. The apartment complex’s operating manual states, “If a property utilizes fencing along its perimeter as an exterior security fence whether owned by the property or not, the fencing must be evaluated for deficiencies.”
There is nothing in the complaint to indicate that the apartment complex was utilizing the fence “as an exterior security fence” or in any other way. Thus, even if this operating manual were sufficient to impose a duty on defendants, the complaint does not allege facts sufficient to show that defendants would have breached this duty.