Premise liability generally refers to a body of law that governs injuries that occur to victims as a result of unsafe conditions on another person’s property. Within this category are several specific types of premises liability cases such as slip and falls, animal attacks, faulty store displays, fires and inadequate security. Such unsafe and negligent conditions can be found in any building structure or open space such as in a home, place of business, sports arena, commercial building or farmland.
Although some premises liability cases may seem rather straight forward, in some states the law now errs on the side of favoring the premises owner. Thus, in assessing a premises liability case, it is often helpful to consult with an attorney that is familiar with this area of law. If you have any questions or concerns within this area, you may also e-mail firstname.lastname@example.org and a trained attorney will respond to your inquiries.
The extent of the liability of the owner/occupier depends on where the injury occurred and the status of the injured victim. In most states, before assessing whether and to what extent the premises owner/occupier is liable, it is first necessary to determine if the plaintiff was an “invitee”, a “licensee”, or a “trespasser”. The defendant’s duty to the plaintiff can vary significantly depending upon how the plaintiff is classified.
In premises liability cases, the defendant is always the possessor of the land. Possession is defined in this instance as the intent and right of a person to occupy and/or exercise control over a particular plot of land. Once possession has been determined then the standard of care owed to the plaintiff varies significantly based on the plaintiff’s status of entry.
Is there a duty to those off premises?
There is no duty to protect an individual from dangers off the premises if the danger stems from a natural condition of the land (e.g., trees, rocks etc…) in rural areas. In urban areas, there is an exception to this otherwise absence of duty, and liability is attached for damage caused off the premises by trees on the premises (e.g., falling tree limbs). For dangers surrounding artificial conditions or structures (e.g., buildings) there is a present duty not to create any unreasonable dangers.
What are the different statuses of entrants onto premises?
This category is further subdivided into 2 different groups: Undiscovered trespassers and discovered trespassers. Many have heard of those crazy cases where a robber slipped and fell after having broken into a house with the intent of robbing it and received a huge jury reward for his injuries. Let me be the first to tell you that that is not the law. There is no duty owed to an undiscovered trespasser.
As to discovered or anticipated trespassers (those who do not have permission to be on the land but whose presence the owner/possessor is aware of), the landowner must either warn (put up a sign or fence off the area) or make safe any known and non-obvious artificial conditions on the land that involve a risk of either death or serious bodily injury.
Under the attractive nuisance doctrine, most courts impose on a landowner an entirely separate duty for trespassers who are children. This doctrine imposes a special duty of care on the possessor with respect to artificial conditions that involve a reasonably foreseeable risk of harm to children who are unable to appreciate the danger themselves (e.g., cars, machinery, construction equipment…) For liability to attach under this doctrine, the plaintiff must present and satisfy the following four requirements:
(i) an artificial dangerous condition on the land that the owner is or should be aware of,
(ii) the owner knows or should know that children frequent the area,
(iii) the condition on the land is likely to cause injury due to the child’s inability to appreciate the risk and
(iv) the expense of remedying the danger is slight compared to the magnitude of the risk from the artificial conditions that carry a risk of death or serious bodily harm.
If all four of these elements are present, the land occupier will have a duty to either warn or protect the children from these artificial conditions.
A licensee is an individual who enters the land with the express or implied consent of the land possessor, for his own purposes (rather than to confer any benefit to the land owner). Licensees with express consent include social guests, visiting relatives, business visitors, firefighters, police officers, paramedics. Those with implied consent include solicitors, someone who comes on personal business or who comes to borrow something from the land.
A land occupier owes a duty to warn licensees of, or make safe, natural or artificial conditions or activities involving any risk of harm known to the land occupier and not obvious to a reasonable person coming onto the land.
A landowner owes the highest standard of care to an invitee. There are two primary types of invitees: business invitees and public invitees. An invitee is a person who enters by either the express or implied invitation of the land occupier but, unlike the licensee, the invitee comes onto the land for a purpose that serves the interest of the land occupier.
Business invitees are on the premises for the purpose of conducting business or to confer a monetary benefit to the land occupier such as a customer, or employee. Public invitees are those who as a member of the public, enter onto land held open to the public at large – such as a library. As to invitees, land possessors must use reasonable care in maintaining the premises and in their activities. This often entails taking affirmative steps to discover dangers on the property.
Please note that an invitee is only entitled to remain on the part of the premises he was expressly invited to enter. Thus, if he extends beyond the boundaries of the invited area (such as a store customer going into the back of the store without express permission) remains an invitee so long as he remains on the part of the premises that he was invited to enter. If he goes outside the boundaries of his invitation, for example, a customer in a bar going behind the bar without permission, he may become a licensee or perhaps even an outright trespasser.
Public Roads and Sidewalks
Premises owners are typically charged with clearing public sidewalks in front of their premises, and to maintain their premises so as not to pose a danger to members of the public who are passing by on a public street or sidewalk.
Non-Delegability of Duties
The duties of a premises owner are typically non-delegable. If the defendant remains in possession, the defendant cannot escape responsibility merely because he contracted with a third party company to provide maintenance or care for the area he is responsible for.
For example, a business remains liable for the condition of its parking lot, even if it has hired a landscaping company to maintain the parking lot and to remove snow and ice. A landlord remains liable for the condition of the housing it owns, even if it has contracted with a management company to provide all service and maintenance in relation to the housing.
California no longer follows the traditional common law approach that was described above. Below we have outlined the major California differences in assessing premises liability under their current law.
Reasonable Person Test
In California, “(t)he proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others ….” (Rowland v. Christian (1968) 69 Cal.2d 108, 119.
Status of Visitor
As explained earlier, the common law determination of a visitors status (trespasser, licensee, invitee…) on the property was the most defining factor in assessing an owner’s duties to the visitor.
Under current California law, status may be relevant to the specific nature or scope of those duties or to the foreseeability that the visitor might be harmed. See Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 25. Moreover, California courts also reject the common law distinction between artificial and natural conditions (Sprecher v. Adamson (1981) 30 Cal.3d 358, 371.
Duty to: (1) Keep Safe; or (2) Warn of the Danger:
In California, a possessor of land has a duty to use reasonable care to maintain his or her property in safe condition or, alternatively, adequately warn of the danger. Should the possessor of the land fail to use such care then (s)he will be liable for any such negligence if it results in harm to a person or property.
In determining whether a party was negligent, the possessor must be shown to have failed to exercise “ordinary care or skill in the management of his or her property or person…[CA Civil Code § 1714(a)] thereby exposing persons to an unreasonable risk of harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.
Duty to Inspect for Concealed Dangers
The possessor has an affirmative (active) duty to exercise ordinary care to ensure that the premises are safe. Therefore, the possessor must inspect the area under his possession to ensure that everything is in the appropriate condition and that there are no concealed harms or defects that a proper inspection would have otherwise shown.”…if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.
Open and Obvious Conditions and Comparative Negligence
Courts distinguish between those dangers that are open and obvious from ones those are concealed. As stated above, for those dangers that are concealed and would not be open and obvious to the non-possessor, then the possessor must warn or make safe the dangerous condition. However, where, a “danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning” and the property owner has no duty to warn of the condition (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393).
Some courts have decided that the possessor may still have an active duty to remedy the dangerous condition despite its obvious visibility. In the event that someone was injured by a plainly dangerous condition on the land, then some courts will compare the negligence of the possessor in not remedying the danger against the injured party’s negligence in failing to appreciate the obviousness of the danger. Donohue v. San Francisco Housing Authority(1993) 16 Cal.App.4th 658, 665; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114-122.
Constructive Notice of Store Owner Regarding Dangerous Conditions
Sometimes there are situations where the possessor did not know of a dangerous condition on their land, but the circumstances are one where he had enough time that he should have known about it.
For example, the manager/owner of a grocery store must ensure that the premises are safe for its customers. On a day-to-day basis, there may be numerous spills and messes throughout the store that may be extremely dangerous for a customer who could slip and fall on it. In such instances, California courts have said that ‘evidence that…the dangerous condition was present for a sufficient period of time to charge the [store] owner with constructive knowledge of its existence.” Ortega v. Kmart (2001) 26 Cal.4th 1200, 1205, 1206, 1210.
So in the above example, if a bunch of strawberries had fallen onto the ground and by the time someone had slipped and fallen on them, enough people had walked on them that the strawberries had turned from its original shape to a muddy-dirty-strawberry floor jam that’s all over the ground, then courts will use that evidence to show that the mess had been left long enough for the owner to have constructively known about the danger.
Preventing Criminal Acts
Further, defendant property owner is negligent if he/she/it allows a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.
An example of this situation might be one where a theater has late night showings of movies. It is foreseeable to the theater owners that their customers will leave the movie in the middle of the night and have to find their cars in the adjacent parking lot. Therefore, they may be found negligent if they fail to keep the area well lit to help ensure their customers safety. The more heightened forseeability of such dangers (e.g., prior violent incidents had occurred) then more likely for negligence to attach.