Tuesday, November 24, 2015
Landlords Not Liable for ‘Bomb House’ Injuries—C.A.
By KENNETH OFGANG, Staff Writer
The owners of a house where a tenant stored explosives without the defendants’ knowledge are not liable for injuries suffered by a worker when unstable incendiary materials detonated, the Fourth District Court of Appeal has ruled.
Div. One yesterday certified for publication its Oct. 27 opinion affirming a judgment in favor of Niel and Michele Mamerto, owners of the Escondido “bomb house” that authorities incinerated after discovering that tenant George Jackubec had been using the premises to make and store the devices. Prosecutors said in 2010 it was the largest illegal weapons cache discovered in the United States up to that time.
Jakubec pled guilty to carrying a firearm during a bank robbery and attempted bank robbery in 2011—based on two separate incidents that occurred in 2009—and admitted that he made nine detonators, 13 grenade hulls and 22 other destructive devices and stored them at the house he rented from the Mamertos. Jakubec, who was said to be depressed after losing his software engineer’s job in 2007, gave no explanation as to what he was planning to do with the devices, according to news accounts.
He was sentenced to 30 years in federal prison. Bureau of Prisons records show he is at U.S. Penitentiary Lompoc and due to be released in 2037.
The Mamertos were sued by Mario Garcia and his wife after Garcia, a landscaper employed by the Mamertos for five years, accidentally triggered an explosion that injured his eye, arm, and chest. FBI agents said they found eight pounds of the homemade explosive HMTD buried in the yard, and more HMTD inside the home.
They also found PETN, the explosive used in the unsuccessful “shoe bomber” and “underwear bomber” plots.
In suing the Mamertos, Garcia alleged they had the authority to enter and inspect the premises, and were negligent in failing to do so. But San Diego Superior Court Judge Joel R. Wohlfeil said they were not liable absent notice of a need for such inspection, and granted their motion for summary judgment.
The trial judge explained that “before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, [a plaintiff] must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.”
Presiding Justice Judith McConnell, writing for the Court of Appeal, agreed.
Citing Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, she wrote:
“The obligation to inspect arises ‘only if [the landowner] had some reason to know there was a need for such action.’…The month-to-month tenancy may have given the Mamertos the right and the ability to cure a condition by terminating the lease on proper notice, but only if they knew about the condition or had some reason to know inspection was necessary.”
No Exception Applies
An exception might apply, she said, if, for example, the landlords were in violation of a safety law or retained control of a portion of the premises. But no evidence was presented that would justify invoking any of the exceptions recognized in the case law, she wrote.
Not only had Garcia and his employees worked on the premises for years without incident, she said, but “[a] repairman entered the Premises to replace the garbage disposal in September 2009 and reported to the Mamertos that everything was fine at the house” and Niel Mamerto “also visited the Premises himself on one occasion and did not observe any problems.”
“Niel’s experience managing real estate properties and the fact a fence needed to be replaced during the tenancy does not suggest the Mamertos had a reason to know there was a need to inspect the property. Applying the bright line rule, the Mamertos cannot be held liable to the Garcias because the Mamertos had no actual knowledge of the dangerous condition.”
The case is Garcia v. Holt, D066393.
Copyright 2015, Metropolitan News Company