What is Premises Liability?

In California, a property owner (and/or operator) owes a duty of care to others to ensure that their property is in a reasonably safe condition. Therefore, an owner-operator can be held liable for injuries that arise out of a dangerous condition of the premises. Importantly however, an owner-operator is not strictly liable for any and all injuries that occur on their property. For an owner-operator to be found liable, they must have negligently created the dangerous condition that caused the actual injury, or they must have failed to use reasonable care in discovering and resolving the dangerous condition.

Premises liability actions are fundamentally negligence actions, and are based on certain universal principles of negligence. As such, the simplest way of understanding the core of premises liability is to first review the elements of a negligence action.

In a personal injury case, negligence is found when three factors have been satisfied:

  1. A duty of care exists.
  2. There was a breach of the duty of care.
  3. The breach caused the injury.

Premises liability can thus be properly understood through these key terms.

Duty of Care

Owner-operators owe a general duty of care to manage their property in such a way as to avoid exposing visitors to an unreasonable risk of harm.

Who can potentially be held liable for an injury?

Anyone who owns, possesses, or controls the property-at-issue can potentially be held responsible for damages in a premises liability case. Ownership and possession is unnecessary in a premises liability case - it is most important to prove that the defendant exercised a degree of control over the property.

What does the duty of care entail, exactly?

Because the specific facts and circumstances that describe the dangerousness of a property may vary substantially between cases, the duty of care owed by an owner-operator can be difficult to pin-down in absolute terms. Generally speaking, however, an owner-operator must use reasonable care to discover and fix (or warn against) dangerous conditions of the property, whether man-made or natural. California Civil Jury Instructions 1001 highlight several important factors for determining whether the defendant used reasonable care, including but not limited to: the location of the property itself, the likelihood that someone would use the property in the manner that the injured party used it, the likelihood of harm from the dangerous condition and the seriousness of that probable harm, whether the defendant should have known or did know of the dangerous condition, the financial and/or logistical difficulty in fixing the dangerous condition, and the extent of defendant's control over the property, among other factors. It is important to note that an owner-operator cannot always be expected to be aware of every possible dangerous condition on his or her property. An owner-operator only has a duty of care with regard to those dangerous conditions that he or she reasonably should have known about - an owner-operator of a small retail shop may not be expected to know about a subterranean, hidden condition that would not otherwise be revealed through a standard premises inspection.

The various duty of care factors are perhaps best visualized as a case example. Imagine a situation in which a businessman runs a small clothing retail outlet (for simplicity, imagine he owns the property, too). You, a customer, are browsing through an aisle full of clothing racks when you suddenly slip on a thin puddle of standing water and injures yourself. An effective personal injury attorney will identify all the relevant factors and advocate such that the Court considers those factors in your favor. For example, given that you are the injured party in this case, your attorney will want to argue that the owner-operator did owe you a duty of care to either fix the dangerous condition (the standing water) or to reasonably warn you of it. Here, the attorney might focus on the fact that the water would have been discovered by a reasonable inspection, and that such inspection would have been logistically simple and financially insignificant from a costs perspective. The attorney might also focus on the fact that a slip-and-fall accident can cause great harm, and that injuries resulting from slip-and-fall accidents are quite common and are reasonably foreseeable. The attorney will likely also want to show that the owner-operator closely managed and controlled the retail outlet premises and was therefore in a position of authority necessary to fix the dangerous condition, or to warn visitors of its existence. In such a case, an effective premises liability attorney will most likely be able to establish that the owner-operator owed you a duty of care.

What about third-party or criminal incidences?

A typical duty of care analysis takes into account a wide variety of possible injuries, including those that result from third-party and criminal activity. An owner-operator has a duty to exercise reasonable care in controlling the activities of third-parties coming onto his or her property. If an owner-operator of a business is aware that there is a heightened risk of criminal activity (muggings, assault, rape, etc.) in the vicinity of the business, the owner-operator could be held liable for injury on the premises as a result of such activity. In California, numerous cases have confirmed the existence of this expanded duty of care (see Ann M. v. Pacific Plaza Shopping Center, Delgado v. Trax Bar & Grill). If they wish to avoid a potential premises liability case, a business located in a criminally-active area may be required to hire security guards or to install street lamps to deter nearby criminal activity.

Breach of Duty

In a premises liability action, once the duty of care has been established, one must prove that the duty was breached by the owner-operator of the property. In other words, one must prove that the owner-operator failed to fulfill their duty of care.

What constitutes failure with regard to the duty of care?

To have breached the duty of care, an owner-operator must have been negligent in their ownership, possession, or control of their property. Stated another way, an owner-operator breaches their duty of care if they do not exercise reasonable care in maintaining their property and preventing an unreasonable risk of harm to visitors. Just as with the factors governing the duty of care itself, the determination concerning breach is based on the specific facts and circumstances of one's case. As a general rule, however, there are two ways in which owner-operators breach their duty of care: 1) they do not take any steps to fulfill their duty; and 2) they negligently fulfill their duty, or in other words, they improperly execute their duty.

What is improper execution? Let's return to the standing water example from earlier. Suppose that the owner-operator had a policy of floor inspection and maintenance in place so that employees would regularly find such puddles and clean them as necessary, but perhaps you, the injured party, slipped-and-fell on the puddle during the period in-between inspection and cleanup. The owneroperator could still be found liable for breaching their duty of care if the inspection/maintenance plan for floor cleaning is negligently implemented. Imagine that the inspection/maintenance plan only demands that employees conduct inspections once every day, before closing. A once-a-day inspection/maintenance plan would not be sufficient to discovery and correct any new dangerous conditions as they appear in a retail outlet. As such, the owneroperator would likely be found to have breached their duty of care, despite having taken some steps towards satisfying their duty.

Causation and Comparative Negligence

Finally, for a defendant to be held responsible for damages in a premises liability case, the defendant's negligent breach of their duty of care must have been the substantial, or primary, factor causing the injury.

Importantly, the injured party in a premises liability case also has a responsibility to behave reasonably on the premises so as to avoid getting injured. In many cases, the injured party acted negligently themselves in ignoring warning signs of the existence of a dangerous condition, and thus their own negligence - not the defendant's - was the substantial cause of the injury. Alternatively, some dangerous conditions are obvious and need no warning. In those cases, the injured party may be found de facto negligent for having injured themselves.

What happens if the injured party was at fault, too?

In California, if the defendant claims that the injured party is at fault, the Court will determine just how much "at fault" each involved party is. This is the process of applying comparative negligence, or comparative fault. If, for example, the Court finds that the injured party is 40% at fault, and that the defendant is 60% at fault, the injured party will be entitled to only 60% of the total damages award to account for comparative fault.

If you believe that you may have an actionable premises liability claim, please get in touch with a qualified attorney as soon as practicable - the statute of limitations (i.e., the time limit) for either filing in a proper court or settling the premises liability claim against a private entity is two years from the date of the accident. Failure to timely file or settle will, in most cases, forever bar your claim. For a premises liability claim against a public entity (such as a city, county or other governmental agency), there is an additional requirement that the public entity must be given a proper Notice of the Claim within 180 days of the incident. While there are certain limited exceptions to the 180-day-rule, failure to comply can, and often does, bar an otherwise valid claim.

In addition to the need to comply with the statutes of limitation, an equally important concern is that, in order for an injured party to be successful in making the claim, evidence must be timely preserved and the scene documented. If you can, take your own personal photos of the scene and contact an attorney as soon as possible after an injury-producing event. This will give the attorney an opportunity to investigate and determine if your case can be successful. Timeliness is crucial - once the scene of the incident has been altered, witnesses lost, or the owner operator fixes the dangerous condition, it becomes much more difficult to win your case.

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.