If a customer or client trips over the door sill coming into your place of business and falls and breaks an arm, are you responsible? What if she slips on a piece of lettuce dropped on the floor by a previous customer? Or maybe he falls because of a patch of black ice on the sidewalk in front of your building. What if someone is assaulted in your parking lot or garage, or is shot while working on your premises by a “disgruntled former colleague”? Would you be liable for damages? The answer may well be, “It depends.” Could you have foreseen that this would happen? Did you take reasonable precautions to avoid such accidents? Do you have good records of precautionary actions taken?
Premises Liability – Background
The term “premises liability” refers generally to the legal responsibility of the owner and/or occupant of real property for injuries that someone may sustain while on the property due to a dangerous or defective condition that exists there. Responsibility in such cases is not automatically imposed, but depends on whether the owner is perceived as having created, or allowed, a dangerous or defective condition to exist on the property. The issue is further complicated because within the United States, the law varies from state to state, although it usually is quite similar in basic circumstances. This article focuses on liability law in the United States and on California cases and statutes in particular. However, since California is a leading state in the area of tort liability, California law usually represents the prevailing rule of law in the United States.
The impact of this area of the law is not limited to business entities and commercial property; it extends to residential properties as well. According to one study, apartment and condominium complexes are among the most often sued entities.[1] While these would be considered business entities in most cases, liability may also occur at a private home. Nevertheless, the sheer volume of business cases suggests that the business community should be particularly concerned about what the law expects from them with respect to the condition of property under their control.
For example, as the largest retailer in the world with over 3,000 stores and more than 100 million customers per week, Wal-Mart experiences approximately 1,000 customer injuries per day due to people slipping on water or merchandise spilled on the floor or to being hit by falling merchandise. While only a small percentage of these people file law suits, in 1998 alone some 3,734 suits were filed against Wal-Mart.[2]
Wal-Mart is not alone. The number of suits filed by victims in premises liability cases has increased over time,[3] but filing a suit does not necessarily mean that a plaintiff will win a judgment. One study of premises liability cases from 1993 to 1997 showed “defendants winning more often and paying less when they lose.”[4] Further, an analysis of decisions issued in 1998 showed plaintiffs losing many cases on appeal.[5] The Defense Research Institute found that plaintiffs were more likely to win in industrial property injury cases than in injury cases that occurred on retail or recreational properties.[6]
However, another nationwide survey of jury cases “found that plaintiffs won cases more frequently than the defense in 2000, and the median compensatory awards have risen steadily since 1994. . . .” [7] This study reported that the “median award rose 15% in 2000 to $114,862 from $100,000 in 1999. Between 1994 and 2000, the median award rose 88%.”[8] It must also be kept in mind that many cases are settled before going to trial,[9] a fact that needs to be considered when interpreting these data. While the data are mixed about trends in court cases, a premises liability lawsuit is clearly the kind of legal situation that it is preferable to avoid.
Legal Basis for Premises Liability
The principal California jury instruction[10] specifies that the owner/occupant/lessor of a property is under a duty to exercise ordinary care in the use, maintenance or management of such premises in order to avoid exposing people to an unreasonable risk of harm. This duty exists whether the risk of harm is caused by a natural condition or an artificial condition created on the premises. A failure to fulfill this duty to exercise care is considered negligence. If the harm that results is foreseeable by a reasonable person who should be aware — actually or constructively — of the risk, then the law imposes liability, and thus legal responsibility. In the absence of actual knowledge of a dangerous condition, the law may impose “constructive knowledge” on the owner or occupier by reason of a failure to adequately inspect the premises as required by the nature of the activity on the land.
In determining whether or not ordinary care has been exercised, the standard imposed is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those in a particular case. This duty is owed only to those persons who a reasonably prudent person under similar circumstances should have foreseen would be exposed to the risk of harm. However, in some states and some cases, courts have held that even trespassers may be protected under this standard.[11] (It should be noted that workers’ compensation laws usually cover injuries to employees of the owner/occupant, and therefore the rule of law discussed here does not apply to injuries they sustain in the course and scope of employment.)
Thus, the law is clear that the owner or occupier of premises is under a duty to inspect, maintain, and if necessary, warn those “foreseeable users” who will be on the property. The duties are clear, the law is certain, and it is a notion that we all generally accept as a condition of land ownership.[12]
A Defense Against Premises Liability
As is true in so many areas of life, the best defense is a good offense. Each manager of business property should create an inspection and maintenance program to mitigate any type of dangerous or defective condition that could be a foreseeable risk of harm. The particular program obviously depends on the nature of the business and the type of property. For example, it is not uncommon in the retail grocery business to inspect the aisles every thirty minutes and to record the inspection. The key is whether or not the inspection is reasonable in relation to the business activity.
In the case of a public park, one county agency inspected the swings every thirty days. The swing sets were constructed of steel, and the foreseeable use would not indicate likely degradation of such material in a 30-day span. Therefore this was deemed a reasonable inspection period.[13] On the other hand, a service station might require an inspection for oil leaks on the floor every thirty minutes or so, depending on the volume of vehicles being serviced. A rainstorm, snow, or other weather conditions might require inspections for slippery mud, icy conditions, potholes, or other conditions that might impose a risk.
Whatever the process of inspection and mitigation, record keeping is essential to show that the duty of care being exercised was what a reasonable person would have done. If a hazard develops about which the owner/occupant is not aware despite the reasonable process, then an appropriate defense is that the duty was satisfied, and there was no negligence involved despite the injury suffered. Once a hazard is discovered, then action must be taken to correct the situation and to warn those who might be exposed in the meantime. The owner must also be sure that the mitigation effort does not increase the hazard or create a new one.
One also needs to be careful that daily activities do not inadvertently create hazards. Take the case of a store owner who regularly washed off his sidewalk every morning before opening. On one occasion he did so at a time when the temperature was below freezing, thus creating “black ice,” a condition not readily apparent to customers entering his store. His insurance carrier was stuck for the damages!
The Responsibility of Ordinary Care
All of the foregoing information is not to say that the person who might be injured by the risk has no responsibility to be aware of conditions. Neither does it say that the owner/occupant is an insurer of the safety of the premises. In general no liability applies to the property owner if a person’s injury resulted from a danger that was open and obvious to people.[14]
Case law provides some guidance here. These are cases that are frequently cited as precedents in California court cases.[15] In the first case the plaintiff, a railway worker, was crushed between a train and an adjacent building. However, since he knew that when trains passed the building, there were only four to six inches of clearance between the building and the passing train, the railroad was not held liable.[16] In another case a plaintiff while walking in broad daylight fell down a flight of stairs in downtown Los Angeles. There was no defect found in the stairs – no condition that should have been remedied. Therefore, the defendant was not found liable.[17] In a third case the plaintiff was injured when the edge of a ditch collapsed beneath him while he was stepping over it. The court ruled that the plaintiff should have been aware of the possibility that this would happen.[18] Finally, in a case involving a plaintiff who tripped over a lawnmower that was leaning against a wall, the defendant was not liable because the woman who fell acknowledged having seen the lawnmower there prior to tripping over it.[19]
Special Circumstances
Sometimes there are special protections for particular landowners. For example California Civil Code Section 846 provides that, subject to certain exceptions, the owner or occupier of real property owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions on such premises.[20] Although the original goal that the legislature had in mind was to reverse the tendency of landowners (presumably of large land parcels) to exclude the public from their land for recreational uses because of the threat of litigation based on tort liability, the California Supreme Court interpreted the statutory language as including all property, even residential small parcels. Thus, in the case of a teenager who tripped and fell on an uncovered rebar in concrete and lost an eye while playing hide and seek in the dark and running along a neighbor’s property line, the California 4th District Court of Appeal upheld a non suit against the plaintiff based on the application of CC 846 to a single family residence.[21]
The exceptions to CC 846 involve (1) willful failure to guard or warn against a dangerous condition, (2) recreational entry for consideration, and (3) if there is an express invitation, as distinguished from merely permitting a person to come on the premises.
In some areas the law is still evolving and is being applied in ways not necessarily seen in prior cases. For example, there is the question of whether the duty of care includes warning or protecting against possible criminal activity on the premises that poses a risk of harm. Some cases have said “yes,” and the resulting requirements for management have included extra security in the form of guards, alarms, warning signs, fences, etc.
In this regard, parking structures may now be of special concern. Statistics from the U.S. Department of Justice in the mid-1990’s revealed that “10 percent of all rapes by strangers occurred in parking areas, leading to 20 percent of all premises liability lawsuits.”[22] Furthermore, “a review of 731 premises liability cases filed between December 1993 and December 1997 showed that crimes in parking garages led to liability cases twice as frequently as did crimes in other locations on a company’s property.”[23]
Another special circumstance would be the question of the responsibility of the owner/occupant for risks created by contractors hired to work on the premises. Some cases have held the owner/occupant liable for public areas, and other rulings have also held owners liable in cases in which the work is dangerous enough that the duty of care is not delegable by the owner/occupant to the contractor. Damages may be sought under a theory of premises liability even in the situation in which a “disgruntled former employee” returns and harms his or her former colleagues.[24]
A full discussion of these and other special circumstances is beyond the scope of a “primer.” Suffice it to say that as a part of risk management, employers must be aware that as necessary as it is to watch for slippery floors and poorly stacked merchandise, responsibility does not end there.
Conclusion
The key thing to remember is that good management practices dictate that every effort should be made to eliminate risks and to warn against them so that injuries do not occur. This is not just a matter of legal liability and the costs attached thereto. It is a matter of humane concern for those who enter your property.
[1] Norman Bates and Jon Groussman, “More Wins for Defendants in Premises Liability Cases,” Security Management, 44, No. 2 (February 2000): 94.
[2] Falling merchandise is a growing area of liability as more “big box” stores are created. Customers who attempt to retrieve merchandise from boxes stacked on shelves may either knock boxes off on themselves or leave them re-arranged so that boxes fall when another customer attempts to retrieve one. See Steven P. Garmisa, “Premises Liability Law Expands as Retail Outlets Grow into ‘Big Boxes’,” Chicago Daily Law Bulletin, (October 31, 2002).
See also Lewis Laska, “How To Win Against Wal-Mart,” Consumer Attorneys of California FORUM: 31, No 5 (June 2001): 22.
[3] Michael Higgins, “Stop ‘ n’ Shop Crime,” ABA Journal, 85, No.5 ( May, 1999): 32.
[4] Bates and Groussman,, (February 2000).
[5] Ibid.
[6] “Plaintiffs Winning Fewer Trials in Premises Liability Cases DRI Article Reports,” Insurance Advocate 108, No. 26 (June 28, 1997): 3.
[7] Lynna Goch, “Loss/Risk Management Notes,” Best’s Review, (July, 2002): 71.
[8] Ibid.
[9] “Premesis Security Suits – Experts Explain How to Investigate for Defense,” Insurance Advocate 110, No. 48 (December 4, 1999): 11
[10] BAJI 8.01
[11] “Premises Liability- Overview,” FindLaw for the Public. (Online at http://public.findlaw.com/premises_liability/overview.html ).
[12] Rest.2dTortsSec 343 See also, Kevin Lancaster, “Premises Liability: A Reasonable Theory”, Consumers Attorneys of California FORUM 31, No. 5 (June 2001). See also, Ortega vs. Kmart, (2001) 26 Cal 4th 1200, for a good review of this area of law.
[13] This was a case in which the author was one of the attorneys of record.
[14][ Brown v. San Francisco Ball Club (1950) 99Cal.App2d 484,486.
[15] Although these cases are reasonably “old” by many measures, they are still the precedents that are generally cited. For a review of additional cases, however, see Ortega vs. Kmart, (2001) 26 Cal 4th 1200.
[16] Shanley v. American Olive Company (1921) 185 Cal 552.
[17] Blodgett v. B.H. Dyas Company (1935) 4 Cal.2d 511.
[18] King v. Griffith Company (1944) 65 Cal App.2d 114.
[19] Holcomb v. Burns (1960) 183 Cal.App.2d 112.
[20] For a full discussion of this section and the exceptions, see Charles J. Hunt, Jr., “Exculpatory Agreements Executed by Minors of Their Parents Regarding Inter-Scholastic Sports: Right of Disaffirmance Based on Contract Law and Public Policy,” Consumer Attorneys of California FORUM, 29, No. 8 (October 1999): 28.
[21] This was a case in which the author was one of the attorneys of record.
[22] Howard Moster, “A Good Parking Space,” Security Management, 44, No.10 (October 2000): 62.
[23] Ibid.
[24] J. Kevin Hennessy, “Commentary: Maintaining a Safe Workplace is Employer’s Responsibility,” The Daily Reporter, (Milwaukee, WI: August 25, 2003).
