Premises liability is a type of personal injury liability in which the plaintiff suffers injury arising from a dangerous condition of property. Premises liability requires that the owner-operator negligently created the dangerous condition of property, however. The fact that a person is injured by a dangerous condition of property does not itself legitimize a premises liability claim – the plaintiff must prove that the owner-operator of the property was negligent in some way, either by negligently creating the dangerous condition, by negligently failing to maintain the property, by negligently failing to inspect or become aware of the dangerous condition, by negligently failing to repair the dangerous condition, and more.
Negligence is thus central to a personal injury claim involving premises liability. Negligence requires a duty of care, a breach of the duty of care, and causation (essentially, that the injury was caused by the breach of the duty of care). For a broader introduction to negligence and personal injury, please read our article here.
As with most negligence claims, the specific circumstances of the premises liability claim can significantly affect the legal analysis. Let’s begin with the elements of negligence.
Premises Liability and Owner-Operator Duty of Care
Owner-operators of property are saddled with responsibility. They owe a duty of care not to expose visitors to harm on their property, assuming that such harm could have been reasonably avoided had the owner-operator not acted negligently.
First, however, let’s unpack the term “owner-operator.” In the context of this article, an owner-operator is a person or entity that could be held potentially liable in a premises liability case. This means anyone who owns, possesses, or otherwise controls the premises. Control is the crucial element. If a storeowner is leasing his store property from a landlord, that storeowner still exercises control over his store’s premises. If you slip and fall on the premises due to a dangerous condition of the property, you can bring a premises liability claim against the storeowner, despite the fact that he does not actually “own” the property.
So, what duty of care does the owner-operator owe a visitor in the context of premises liability?
At first, the duty of care might appear quite straightforward: an owner-operator must use reasonable care to discover, repair, and/or warn against any and all dangerous conditions of the property, so as to prevent injury.
The difficulty in assessing an owner-operator’s duty of care, however, is in understanding what constitutes reasonable care. In other words, to what extent must an owner-operator go in inspecting his property such that he would not be held liable for failure to warn of a dangerous condition? Must the owner-operator repair every potentially dangerous condition of the property, no matter the expense? Further, to what degree should the victim have been expected to avoid the dangerous condition?
Importantly, the above questions do not have a formulaic answer. There is no objective measure by which California law allows a person to precisely assess the reasonableness of the owner-operator’s actions (or failure to act) – the assessment is quite subjective. As such, because your attorney will have to parse out the relevant factors and argue subjectively in your favor, it is especially important in premises liability cases that you seek the representation of a skilled, experienced attorney.
Of course, despite the fact that assessing the owner-operator’s exercise of reasonable care requires a somewhat subjective analysis, there exist some guideline factors. California Civil Jury Instructions (CACI) 1001 outlines a number of them, though the list is not exhaustive. They include the location of the property, visitor behavior (did the injured party use the property in the way that it was intended to be used), the actual dangerousness of the dangerous condition (whether it a significant or minor danger), and the risk of harm (how likely it was that the visitor would be harmed).
Breach of the Duty of Care
After the owner-operator has been properly identified, and a duty of care has been shown, the plaintiff must show that the owner-operator actually breached their duty of care. This is a matter of application, really – did the owner-operator deal with the dangerous condition negligently? An owner-operator may intend to repair a dangerous condition, for example, but if they do so negligently, then they may still be held responsible for the victim’s damages under a theory of premises liability.
An owner-operator runs a small bakery. There are two problems creating a dangerous condition around the steps leading into and out of the bakery. First, the steps are inadequately lit at night, which makes it easy for a customer to trip and fall on the steps, and secondly, the steps are built at a slight angle, making them precarious to walk on. Suppose that the owner-operator realizes that the steps are dangerous to walk on at night. He takes it upon himself to have the steps fixed. In doing so, however, he only fixes the inadequate lighting situation. Perhaps his inspection of the steps does not reveal the dangerous condition resulting from the precarious angle of the steps. If a reasonable inspection should have shown that the angle of the steps presented a danger, then the owner-operator breached his duty of care to his customer-visitors by negligently inspecting the steps and by failing to properly fix the dangerous condition.
Causation – Who Deserves the Blame?
The owner-operator must have been the primary cause of the injury. In other words, it must be the owner-operator’s negligence, not someone else’s, that caused the injury. That means that the owner-operator cannot be held responsible for a third-party’s fault (i.e., someone in an owner-operator’s store unexpectedly assaults the victim) or for the victim’s own fault.
The victim may have fault turned against them, depending on the circumstances of the case. If the dangerous condition would have been obvious to a reasonable person, then the plaintiff cannot argue that the owner-operator is at fault for their injuries.
Importantly, even if the dangerous condition was nonobvious, the plaintiff may still contend with a fault issue. California law employs comparative fault, which means that, even if the defendant (here, the owner-operator) is at fault, the court may determine that the plaintiff is also at fault, to some degree. The degree to which each party is at fault is generally represented by a percentage. A plaintiff who is somewhat responsible for their own injury (though not entirely) may have their total damages reduced by their fault, thus represented by a percentage value.
Third Party Interference
Though an owner-operator cannot usually be held responsible for an unrelated third-party’s role in an injury, in California, the law has been expanded so that an owner-operator can be held responsible for failing to reasonably control negative third-party behavior that is expected given the location, history, and nature of the premises (Delgado v. Trax Bar & Grill).
For example, if an area is known for criminal activity, and if there has been a history of criminal activity targeting visitors of the owner-operator’s premises, then the owner-operator can be held responsible under a theory of premises liability. The dangerous condition of property in such a case would be the increased risk of being a victim of criminal activity. The owner-operator can fix this dangerous condition by modifying street access to the premises, hiring guards, installing certain anti-crime light fixtures, and more.
Public Property Issues
In California premises liability cases – just as with other California personal injury cases – the government is shielded from liability to a much greater extent than private entities. Government Code section 835 requires that the plaintiff show one of two things: 1) that a public employee acted negligently to create the dangerous condition (and that the public employee was acting within the scope of his employment in doing so); or 2) that that public entity had notice of the dangerous condition and enough time to prevent the injury-at-issue. Essentially, what this means is that public entities have additional protections that will make it harder to succeed in a premises liability claim against them.
Consider, for example, the possibility that a dangerous condition is created by a person on public property who is not themselves a public employee – despite the existence of the dangerous condition, its creation by a person who is not a public employee shields the government from liability, unless, of course, the plaintiff can show that the government was alerted to the existence dangerous condition.