Premise Liability

slipping-caution

Premises liability is a general legal term which describes the risk that an owner (or occupier) of a property faces of getting sued if someone is injured on the property or as a result of activities on the property. Premises liability claims are based on negligence. The most common are “slip and fall” cases, but depending upon the property and the injury, premises liability cases can get quite complicated. The information on this page will help explain the laws surrounding premises liability in California. It’s worth noting that defendants in a premises liability claim will often have insurance that protects them in the event they are sued.

Ordinary Care Standard

In California, the owner of property (or the lessee, occupier or anyone in control of the premises) is liable to any person injured as a result of this owner’s failure to use “ordinary care and skill” in the management of the property. (Rowland v. Christian, 69 Cal. 2d 108 (1968)) “Ordinary care,” of course, is a subjective concept and means different things to different people, so law schools teach something known as a “reasonable person standard.” If the owner could have “reasonably anticipated” the harm and taken measures to prevent it—by repairing defective conditions, placing warning signs, adding security guards or otherwise—then there is a case for liability. Some real lawsuit examples include:

  • A runaway car crushed a plaintiff’s leg in a picnic area. The owner of the picnic area was deemed liable because the picnic area had no foliage, curb, change in elevation or other barriers separating it from the adjacent parking lot. (Robinson v. Six Flags Theme Parks, Inc., 64 Cal. App. 4th 1294 (1998))
  • A plaintiff tripped in a rented mobile home that had torn carpeting on the staircase. The owner was liable. (Fitch v. LeBeau, 1 Cal. App. 3d 320 (1969))
  • A plaintiff slipped and broke her femur in a store that allowed runoff water from washing lettuce to pool in a store aisle. The owner of the store was liable. (Tuttle v. Crawford, 8 Cal. 2d 126 (1937))

California used to extend different standards of care to different types of visitors, the highest standard given to invitees (such as a customer in a store), a mid-level standard to licensees (such as social guests at a party), and the lowest to trespassers. However, in 1968, the decision Rowland v. Christian changed the law to require all owners to use “ordinary care,” regardless of the status of their visitor. Now, the status of the visitor may be relevant in determining what “ordinary care” means (ordinary care for a shoe store downtown will be different than ordinary care for a private farm) and the foreseeability of the harm to the visitor injured—in other words, whether the owner could have predicted, and thus prevented, this sort of injury.

Civil Code 847, however, prevents a property owner from being liable for injuries to criminals who are injured while committing certain felonies on the premises.

Landlords are liable for injuries to tenants (and their guests) resulting from defects in property that are known to them and are a breach of the ordinary care standard voiced in Rowland v. Christian. In fact, such known defects may constitute breaches of the landlord’s warranty of habitability and may be a defense in an eviction lawsuit against the tenant. (See Green v. Superior Court, 10 Cal. 3d 616 (1974)) However, landlords are no longer liable (under a strict products liability theory) for injuries to tenants caused by defects unknown to them which would not be found during a reasonable inspection. (See McCarthy v. Martinson, 51 Cal. App. 4th 632 (1996))

In situations where a plaintiff is injured as a result of a code violation, the owner may be per se liable (under a theory of “negligence per se”) if the plaintiff is the type of person the code is meant to protect, and the plaintiff’s injury is the type of harm the code is meant to prevent. “Per se liability” means that there is no question that the owner has failed to use reasonable care. (See Evidence Code section 669, Clinkscales v. Carter, 22 Cal. 2d 72 (1943), and Morris v. Horton, 22 Cal. App. 4th 968 (1994))

An owner may also be liable—even if there is no evidence to support his unreasonable conduct—under the doctrine of res ipsa loquitur. This is applicable where the accident is of such a nature that it can be said, in light of past experience, that it probably was the result of negligence by someone, and that the defendant is probably the one responsible. (See Evidence Code section 646, Howe v. Seven Forty Two Co., Inc., 189 Cal. App. 4th 1155 (2010))

Defenses

All of the above may make it sound like a property owner assumes all the risk for a premises liability case. But there are eligible defenses. These are the options for defending a premises liability claim:

Assumption of Risk:
An owner will not be liable to an injured party to the extent that the injured party knew of and voluntarily assumed the risk of his actions. For example, a skier knows of and voluntarily assumes the risk of skiing into a plainly visible snow-making machine when he’s on the slopes, even if he is only eight years old. (See Sousa v. Squaw Valley Ski Corp. 138 Cal. App. 4th 262 (2006))

Comparative Negligence:
An owner will not be liable to an injured party to the extent that the injured party acted negligently himself. (See Li v. Yellow Cab Co., 13 Cal. 3d (1975))

Factual Defenses:
An owner will not be liable to an injured party to the extent that he can show that he did in fact exercise ordinary care in maintaining the property, did not cause the plaintiff’s injury, or that the plaintiff has not in fact suffered an injury (in other words, proving that the plaintiff is faking the injury—and you’d be surprised how often this is attempted).

Special Situations

Bars and DUIs:
Bars, clubs, lounges or other establishments that furnish to any “habitual or common drunkard or to any obviously intoxicated person” are liable to any customer who is injured because of actions resulting from intoxication by another customer. (Business and Professions Code section 25602)) However, the landlords of such establishments are not themselves liable—only the business owners. (Hernandez v. Modesto Portuguese Pentecost Ass’n, 40 Cal App 4th 1274 (1995))

Condominiums:
A condominium homeowner’s association has a duty to maintain the common areas of the complex that are under its control (although anything happening within an actual condominium unit is under the individual owner’s control). The directors of the association may or may not be personally liable to a plaintiff, depending upon their involvement in the injury and the type of tort committed. (See Frances T. v. Village Green Owners Assn., 42 Cal. 3d 490 (1986))

Raised Sidewalks:
An owner of a property adjacent to a sidewalk with cracks may be liable to a plaintiff that trips as a result of the uneven ground. (See Gonzales v City of San Jose, 125 Cal. App. 4th 1127 (2004)) With San Francisco’s recent notification to owners to make sidewalk repairs, it appears that failure to do so may result in an owner’s liability. If you own a property in San Francisco, it’s a good idea to check up on the status of your sidewalks.