Types of Premises Liability Claims

Premises liability actions are among the most common personal injury actions. In California, the owner, operator, and/or lessor of property owe a duty to visitors to ensure that the property is in a reasonably safe condition. If the property is not in a reasonably safe condition, the owner-operator must make efforts to warn visitors of the various conditions that pose a risk of injury. For more information regarding the basic elements of a premises liability case, please read our Introduction to Premises Liability article.

Premises liability actions can take on a variety of forms, though all arise from one core fact: that an injury took place on property that belongs to, or is operated by, a person or entity other than the injured.

Slip and Fall

Slip and fall claims are relatively nonspecific, and therefore cover a startling array of situations. Consider the following examples.

In the first, a customer visits a clothing retail outlet. As the customer is browsing the aisles of the store, her foot slips on a pool of standing water and she falls to the ground, injuring herself. If she decides to bring a lawsuit against the owner-operator of the store, then the injured-party will have to prove several elements of her claim: 1) that the dangerous standing water condition was not obvious, that there was no warning of the dangerous condition, and that the injured-party did not act negligently or behave in such a way as to increase the risk of slipping; and 2) that the owner-operator failed to implement a reasonable cleaning policy that would have otherwise resulted in the dangerous standing water condition being cleaned before any injury occurred, or that an employee failed to properly execute such a cleaning policy. If the injured-party can prove these elements of her slip and fall claim, she will likely succeed. This example represents a standard 'inadequate maintenance' case.

In the second, a diner is eating with his family at a restaurant. Upon leaving the restaurant, the diner is walking down the entrance/exit steps and trips, falling to the ground and injuring himself. If the slip and fall accident here was a result of standing water, or debris, or some other temporary hazard, then the 'inadequate maintenance' analysis in the standing water example above will apply. On the other hand, if the slip and fall here was due to an inherent flaw in the design of the steps, then to succeed in his lawsuit against the owner-operator, the diner will have to prove: 1) that the slip and fall accident was not caused by his own negligence in traveling down the steps; 2) that the steps were designed in such a way as to present an unsafe or dangerous condition of property - to prove this element, an effective premises liability attorney will make use of the services of a safety engineering expert who specializes in step safety, and will receive a comprehensive report regarding the safety and design of the steps-at-issue - together, the attorney and the safety expert will attempt to catalogue all the relevant risk factors, which may include aspects of step design, lighting conditions around the steps, visual obstructions, step traffic, and more; and 3) if the owner-operator knew that the steps presented a risk, then the injured diner will want to prove that the owner-operator did not take reasonable measures to warn diners of the risk and to create an alternative entrance/exit path for the restaurant premises.

This second example represents a standard 'faulty design' case, but different facts could result in an entirely different case - perhaps the diner's slip and fall injury was caused by the poor construction of the steps. The diner would therefore want to focus on whether the owner-operator had any reason to know about the poor construction of the steps, and if so, whether the owner-operator attempted to fix the problem. The diner would also potentially have a claim against the persons or business that constructed the steps.

Because slip and fall cases can lead to substantially different legal strategies depending on the circumstances of the injury, it is important that you contact a qualified premises liability attorney as soon as possible following your injury. Evidence gathering is crucial in slip and fall cases. In an inadequate maintenance analysis, the success of the case may depend on whether the attorney can gather evidence on the owner-operator's unreasonable cleaning procedures before the procedures are changed in light of the accident. Similarly, in a faulty design analysis, the success of the case may depend on whether the attorney can gather evidence on design flaws around the location of the injury before the owner-operator re-designs them in light of the accident.

Construction Site Accident

Construction sites can be extremely dangerous - a site under construction may be riddled with holes in the ground, loose tools and equipment, unfinished ceilings and walls, exposed wiring, collapsing scaffolding, and more. As a general rule, a full-blown construction site presents an obvious hazard to visitors, who should take great care on-site so as to avoid injury. Construction workers injured on a jobsite are usually entitled to claim Workers Compensation benefits. However, in cases where the danger is caused by persons or entities other than the injured worker's employer, (for example by another contractor on the job), the injured worker may be able to bring a regular civil lawsuit against the party responsible for creating an unreasonably safe condition. What constitutes an unreasonably safe condition in a construction worker premises liability suit will largely depend on industry standards and whether the employer and owner-operator abided by those standards. Because the amount damages that can be recovered in a civil suit are often much greater than Workers Compensation benefits, every construction jobsite accident should be carefully investigated and analyzed to see if there is a viable civil suit as well as a Workers Compensation claim.

Alternatively, there are many premises that are partly under construction, which means that passersby - not only construction workers - will be exposed to a greater risk of injury. In these situations, injured passersby may have a solid premises liability claim. For example, a business may be expanding the size of its retail outlet by knocking down some walls and building a new section of the store, or a landlord may be updating their building's lobby. When a construction site only partly occupies the premises such that passersby regularly travel through the construction site, this presents new issues.

In a construction site passersby action, the injured passersby may have a claim against either the construction contractor or owner-operator, or both, and will have to prove: 1) that he took reasonable care in traversing through the premises given the heightened risk of injury as a result of ongoing construction; 2) that the injury was not reasonably foreseeable and could not have been avoided (this may depend on whether the owner-operator or construction contractor properly warned passersby of the risk of injury); and 3) that the owner-operator or construction contractor did not take reasonable precautions to prevent or limit the risk of injury.

Third-party/Criminal Intervenor

An owner-operator has a duty to exercise reasonable care in controlling the activities of third-parties coming onto their property. If the owner-operator is aware of an increased risk of criminal activity in the vicinity, then they can be held liable for injuries caused by third-parties.

For example, if a business owner is aware of a serial rapist who is stalking victims in the area, the business owner must take reasonable steps towards minimizing the risk to employees and visitors, perhaps by increasing security presence around his business premises, or by setting up a proper lighting system in the parking lot to discourage attack.

In California, several cases have confirmed the existence of a duty of care on the part of owner-operators to protect and limit the risk of third-party and/or criminal injury to visitors and employees (see Ann M. v. Pacific Plaza Shopping Center, Delgado v. Trax Bar & Grill).

Latent Defective Condition

An owner-operator may be held liable for a latent defective condition of the property, but this applies only to non-obvious conditions.

Imagine, for example, that a person hosts a small get-together with friends at their new home. The front yard has a large, deep ditch. If a partygoer falls into the ditch, it is unlikely that the party-goer will have an actionable premises liability claim against the host, as the host would be able to argue that the dangerous condition of the ditch was obvious to visitors and thus the partygoer should have been able to avoid falling into it by exercising due care.

What if the ditch was not visually obvious, however?

Imagine that the ditch dipped into the ground in such a way that a person exercising due care, walking through the yard, would not notice it. Perhaps the ditch, viewed at a certain angle, appears to be flush with the rest of the yard. In that case, the partygoer would likely have an actionable claim against the host. The host could have prevented a lawsuit by either fixing the dangerous condition (which might be prohibitively expensive) or by setting up a sign (or by giving a warning to visitors) to warn of the dangerous condition of the ditch.

As the example above concerns a party, it should be noted that, in California, a social host who serves alcohol to a person attending their gathering is immune to liability for injuries resulting from that person's intoxication or alcohol consumption (California Civil Code section 1714(c)). Because of this statutory immunity, it is very difficult for those who were injured while intoxicated to bring a successful premises liability action against the host, as the injured-party would have to prove that their intoxication was not the primary cause of the injury, and that, had they not been intoxicated, that they still would have been injured on the premises. Importantly, however, there is no social host immunity when the alcohol is provided to a minor (it is also worth noting that there is no host immunity when the host entrusts a vehicle to an intoxicated person).

Parking Lot Claims

Parking lot claims in the area of premises liability can take on multiple forms. For example, an owner-operator can be held liable for a nighttime accident that occurs in their parking lot if the lights in the parking lot were negligently maintained or if there was not sufficient lighting to create a reasonably safe driving environment. Alternatively, an owner-operator may be held liable for an injury that occurs in a parking lot or roadway they control if the injury was the result of a faulty design. It is not wholly uncommon for owner-operators to be held liable for roadway design that negligently directs traffic into and out of the premises, or that exposes walking visitors to the threat of vehicular traffic. If a parking lot or roadway claim involves a faulty design, an effective will examine the accident history of the roadway and will determine, through in-depth evidence gathering, whether the owner-operator was aware of the increased risk of injury as a result of the flawed roadway, and whether anything was done to limit the risk.

Dog Bite

In California, those who have been injured by a dog bite do not have to go through a standard premises liability analysis. The dog owner is strictly liable for any injury caused by their dog's bite attack (California Civil Code section 3342(a)). Strict liability means that the injured person can win their claim without having to prove that the dog had bitten others in the past or that the owner knew that the dog had dangerous propensities. Contrary to popular belief, there is no free first bite. Thus, if a dog bites you, you should bring a personal injury claim against the dog owner - you should not bring a premises liability claim against the owner-operator.

Public Property Claims

Premises liability claims against government entities (due to injuries sustained on public property) are often very challenging to litigate. Government entities enjoy greater protections against premises liability claims than do ordinary private persons and businesses.

In California, to bring a successful premises liability claim against a government entity, one must prove an additional element that does not exist in premises liability claims against private entities - under Government Code section 835, the injured party must prove either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The statute of limitations period for injury suits and claims brought against a government entity is also quite limited. In most cases an injured person is required to give a written claim notice to the proper government entity within six months of the date of the injury producing event. Only after the public entity denies the written claim is a lawsuit filed. The rules governing the making of claims against public entities are quite complex and cannot be fully discussed in this brief article. If you have been injured on public property, it is therefore crucial to the future success of your case that you contact a qualified premises liability attorney as soon as possible. Your case must be assessed and filed before the time for making a claim and filing a lawsuit runs out.

For a free consultation with a very experienced premises liability attorney, call the Law Offices of Brian O' Grady at (650) 318-6131 to set up your appointment today.