A Primer on Premises Liability
Owning real property is one thing. Taking care of it is another.
Property ownership can be a good investment, but it also comes with significant legal responsibilities regarding maintenance, repairs, and protection of tenants and the public from injury.
Owners must use reasonable care to: (1) maintain their property in a reasonably safe condition; (2) inspect and discover unsafe conditions on the property; and (3) repair, replace or adequately warn others of unsafe conditions on the property. See Judicial Council of California Civil Jury Instructions (“CACI”) 1001. The duty to repair, replace or warn arises when owners have actual notice or constructive notice of an unsafe condition because the condition existed long enough that it should have been discovered through their exercise of reasonable care. Ortega v. Kmart (2001) 26 Cal.4th 1200, 1206; CACI 1011. What is considered reasonable is based on an objective standard and consideration of factors such as the location of the property, the likelihood of harm, the probable seriousness of such harm, the difficulty of protecting against the risk, and other relevant factors. Rowland v. Christian (1968) 69 Cal.2d 108, 119; CACI 1001.
Owners who fail to use reasonable care expose themselves to potential premises liability claims when someone is injured by an unsafe condition on their property.
Common hazards that can lead to injuries and premises liability claims include the following:
- Stairs (e.g. damaged steps, dangerous risers, defective/missing handrails, substance on stairs)
- Missing, inadequate, or defective fences and gates
- Defectively constructed or poorly maintained balconies and terraces
- Wet or slippery surfaces
- Unprotected swimming pools
- Broken, defective, or deficient doors, gates, and locks
- Uneven pavement and other trip hazards
- Mold, asbestos, lead paint and other toxic materials
- Insufficient lighting
- Inadequate warning signs
- Insufficient security measures
- Inadequately maintained elevators or escalators
Owners should ensure that their property complies with the relevant building codes. When an individual’s injuries are caused by a violation of an applicable code, the owner is considered presumptively negligent. Cal. Evid. Code § 669. Neither a citation nor notice of a violation from an administrative body is required for liability to attach. Notably, compliance with applicable codes does not always relieve an owner of liability for injuries because it may not be reasonable under the circumstances to forgo additional precautions. Building codes, regulations and ordinances represent minimum safety standards.
Not all structures are required to comply with current codes. For example, older structures which have not had any significant work or improvements done on them generally need only comply with the building codes that were in place at the time of construction.
Owners may also be liable when there is no applicable law requiring a correction of a condition, but where the owner has been negligent in managing the property.
Absence of Prior Injuries and Complaints
A prior injury or complaint regarding an unsafe condition is not necessary for an owner to be liable, although it may be a relevant factor to be considered. See CACI 1001-1103. Even if the unsafe condition existed for several decades without a complaint or anyone suffering an injury from it, the owner will not be relieved of legal responsibility when the unsafe condition causes someone an injury.
Owners cannot escape liability by delegating their responsibilities to an independent contractor, such as a property manager or safety inspector. The duties are considered non-delegable. Brown v. George Pepperdine Found. (1943) 23 Cal.2d 256, 260; Srithong v. Total Inv. Co. (1994) 23 Cal.App. 4th 721, 726.
This means that an owner’s ignorance of the law, blind eye to the property or failure to appreciate that an existing condition is unsafe will not be a successful defense to a personal injury claim.
Owners that are also landlords have an affirmative duty to inspect their rental property at the beginning of the lease. Mora v. Baker (1989) 210 Cal.App.3d 771; CACI 1006. During the lease period, landlords must make periodic inspections in the common areas that remain under their control, such as entryways, hallways, stairways, parking structures and elevators. After each inspection, the landlord is required to take reasonable precautions regarding all unsafe conditions revealed in the inspection process. Id.
Injuries and Damages
Injuries occur when owners fail to use reasonable care in the maintenance of their property. Injuries can range from being relatively minor, such as bruises, cuts or broken bones to being catastrophic or fatal, such as a brain injury, spinal cord injury, third degree burn or death. The more serious the injury, the greater the likelihood that a premises liability claim will arise, with costly litigation to follow.
Recoverable damages include past and future medical expenses, loss of earnings or earnings capacity, loss of household services, and general damages for things such as pain, suffering, loss of enjoyment and emotional distress. When the injuries are catastrophic, the damages will likely be substantial. In such cases, the cost of medical care alone can result in seven figure to eight figure losses.
It is critical that property owners understand their obligations regarding maintenance of their property and the potential consequences for not complying with them so they can take appropriate measures to prevent injuries on their property. Otherwise, they risk serious financial exposure in a premises liability claim.
Kimberly Wong is an attorney at The Veen Firm, P.C. in San Francisco. She represents plaintiffs in catastrophic personal injury cases involving premises liability, wrongful death, products liability, and workplace injuries.