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Premises Liability

Overview

Premises Liability is a form of negligence in which the owner or lessor of property has a duty to exercise ordinary care in the management of the premises to avoid exposing persons to an unreasonable risk of harm. As in Negligence Law, one must prove negligence, causation, and damages. A person who owns, leases, occupies or controls property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. In deciding whether a defendant used reasonable care, the jury is instructed to consider, among other factors, the following:

  • The location of the property;
  • The likelihood of harm;
  • The probable seriousness of such harm;
  • The likelihood that someone would come onto the property in the same manner as the plaintiff did;
  • Whether the defendant knew, or should have known, of the condition that created the risk of harm; and
  • The extent of the defendant’s control over the condition that created the risk of harm. CACI 1001

CACI are the approved jury instructions from the Judicial Council of California. Jury instructions are read to the jury by the judge and establish the law the jury must follow in deciding the case. A partner of Cheong, Denove, Rowell & Bennett has been formally recognized as one of the attorneys who assisted the task force in the preparation of these jury instructions.

Often, the most significant question in premises liability cases against store owners is whether the defendant created the dangerous condition and, if not, whether he or she had actual or constructive notice. The jury is instructed to decide “whether, under all the circumstances, the condition was of such a nature and existed long enough so it would have been discovered and corrected by an owner using reasonable care. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that a store owner using reasonable care would have discovered it.” CACI 101

A defendant can be liable to a plaintiff even though the defendant does not own or lease the property if that person controls the property as if it were his or her own. In that case, the defendant is responsible for maintaining, in a reasonably safe condition, all areas he or she controls. CACI 1002 A defendant owner, lessee, occupier, or one who controls the property, is responsible for any injury caused by a hidden defect if the defect caused an unreasonable risk of harm, the defendant knew or should have known about it, and the defendant failed to take reasonable precautions to protect against the risk of harm. The jury will be instructed that the defendant must make reasonable inspections of the property to discover such conditions. CACI 1003

A landlord, before giving possession of a leased property to a tenant or upon renewal of a lease, must conduct a reasonable inspection of the property for unsafe conditions and correct any such condition discovered. This inspection must include common areas under the landlord’s control. Even after a tenant has taken possession, a landlord must use reasonable care to correct an unsafe condition under the landlord’s control if the landlord knows or reasonably should have known about it. CACI 1006

A business owner and a landlord may also be held liable for the criminal conduct of another person on his premises. An owner of a business that is open to the public and a landlord must use reasonable care to protect persons from another person’s harmful conduct on his or her property if the owner or landlord can reasonably anticipate such conduct. CACI 1005

Premises liability trial exhibit. Comparison of threshholdTypes of Premises Liability Cases:

Attorneys at Cheong, Denove, Rowell & Bennett have successfully represented clients who have been injured in each of these type of premises liability cases:

  • Wet or slippery floors;
  • Tripping hazards;
  • Inadequate or absent handrails;
  • Inadequate lighting;
  • Cracked or elevated sidewalks;
  • Dangerous work sites;
  • Broken Furniture;
  • Inadequate security;
  • Improper height of a riser or improper width of a stair;
  • Violation of the California Building Code
  • Denial of access to the disabled (Unruh Civil Rights Act)
  • Malfunctioning elevator or escalator (to learn more about this, go to: Actions Against Common Carriers.

Typical Defenses:

  • Defendant did not create the dangerous condition.
  • Defendant did not know of the dangerous condition.
  • The condition was so open and obvious the plaintiff should have avoided it.
  • The condition did not create an unreasonable risk of injury.
  • The dangerous condition did not exist for a sufficient period of time for the defendant to have known about it.

Premises liability - trip and fallProving the Premises Liability Case

Some people may look at the law and conclude that winning a premises liability case is easy. It is not. On the one hand, the plaintiff is trying to prove that the dangerous condition was open and obvious and that the defendant should have recognized and corrected the condition. On the other hand, the defendant is arguing that if the condition was open and obvious, the plaintiff is at fault for not recognizing and avoiding the danger.

As with other negligence actions, the jury must be persuaded to rule in the plaintiff’s favor. Sometimes it is necessary to hire expert witnesses to help prove negligence. Depending on the nature of the claim, these witnesses might have expertise in building codes, safety, merchandising, human factors, engineering or biomechanics.

Conclusion

It takes experience to win a premises liability case. The attorneys at Cheong, Denove, Rowell & Bennett have authored numerous papers and have lectured to other lawyers on products liability, damages and trial practice.