Have you ever been injured while on a public or private property? If so, you may find the following information valuable in determining your legal rights against the owner of the property where you were injured. As with all of our blog postings, the following information is only intended to provide general information and is not conclusive or in no way guarantees liability or results in a premises liability case.
- a. Owner’s Duty to A Visitors
The owner¹ of real property is liable for failing to use ordinary care and skill in the management of his or her person and property to avoid injuring persons on or near it; the test is whether the owner acted as a reasonable person in view of the probability of injury to others. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97.
In order evaluate whether or not an owner acted as a reasonable person, one must understand who a legal “reasonable person” is and/or what that the term signifies. The truth is that there is no universally accepted technical definition of a “reasonable person”. However, Black’s Law Dictionary defines a reasonable person as a hypothetical person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for protection of their own and of others’ interests. In other words, the reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.
The extent of an owner’s duty to use ordinary care to keep the property in a reasonably safe condition is based on the foreseeability that the condition will cause injury. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97, 104; Fitch v LeBeau (1969) 1 CA3d 320, 324, 81 CR 722.
- A store owner has a duty to keep the floors safe for patrons’ use, recognizing that their attention will be attracted by items on the shelves. Tuttle v Crawford (1936) 8 C2d 126, 130, 63 P2d 1128, 1130; Craddock v Kmart Corp. (2001) 89 CA4th 1300, 1306, 107 CR2d 881.
- An owner who is aware of a concealed condition that creates, in the absence of precautions, an unreasonable risk of harm must either repair the condition or warn the persons likely to come in contact with it. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97, 104; Fitch v LeBeau (1969) 1 CA3d 320, 324, 81 CR 722.
More broadly, an owner’s duty to use ordinary care may include a duty to make reasonable inspections of the premises to guard against possible dangers, to make the property reasonably safe for intended or foreseeable users and uses, and to warn of latent or concealed dangers. Beauchamp v Los Gatos Golf Course (1969) 273 CA2d 20, 27, 77 CR 914, 919.
- b. Owner’s Obligation for the Conduct of Other’s Behavior
In certain situations, an owner must act affirmatively to protect visitors² and employees from the wrongful conduct of other visitors. See Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137.
For example, a business premises owner has a duty to protect invitees from: (a) visitors negligent conduct that threatens their safety if the owner has reasonable cause to anticipate or foresee such negligence and the probability of resulting injury; and (b) the intentional conduct of visitors who are known to be on the premises.
As for an owner’s liability for criminal acts of a third party, the owner of a business or public premises has a duty to secure it against foreseeable criminal acts that are likely to occur in the absence of precautionary measures, even when the owner does not actually know of the particular assailant’s presence or criminal intent. Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137.
Foreseeability is the key word in holding a land owner liable for criminal acts of a third party. Courts have been reluctant to conclude that the criminal acts of a third person were “foreseeable” absent circumstances such as prior similar criminal acts. Even when criminal conduct is foreseeable, policy considerations and other factors may preclude imposing a duty, or a finding of breach of duty. Kentucky Fried Chicken v Superior Court (1997) 14 C4th 814, 829, 59 CR2d 756.
Therefore, it is more difficult to hold an owner liable for criminal acts of third parties than their own negligence or unreasonable conduct.
- c. Notice of Dangerous Condition
In most circumstances, the case will turn on whether there is a dangerous condition on the property and whether on the property owner is on notice of this condition. Notice can come in several forms: Actual or Constructive. You can find a more in depth discussion in a separate blog to come.
- d. Establishing Proximate Cause and Damages
A visitor who has established that the property owner owed him or her a duty to protect against a dangerous condition, was on notice of this condition, and who establishes that the defendant breached that duty, must also establish that the defendant’s negligence was “an actual, legal cause” of the visitor’s injuries. Saelzer v Advanced Group 400 (2001) 25 C4th 763, 766, 107 CR2d 617. The same showing of causation applies where owner’s liability does not involve conduct of a third party.
In premises liability cases, proximate cause is generally established through a showing that the harm suffered by the visitor was within the foreseeable consequences of the danger created as a result of the owner’s negligence.
The most obvious yet important factor in having a case against an owner of a real property is establishing that visitor has in fact sustained damages. More commonly, in premises liability cases, the visitor has sustained damages to his or her person and/or property. A visitor’s recovery can expand to his or her mental and emotional distress damages.
EXCEPTIONS TO THE GENERAL RULE
The legislature and the courts have created several exceptions to the general rule that a property owner is liable for injury resulting from a failure to use ordinary care and skill, including the following:
- Furnishers of alcoholic beverages;
- Firefighters, peace officers, and emergency medical personnel;
- Recreational users; and
- Trespassers on railroad locomotives and cars.
These areas will be addressed in more detail in blogs to come.