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The following is a general discussion about premises liability and the laws of California that govern the same. This is not meant to be a conclusive discussion nor is it meant to supersede the advice of a competent attorney. Many areas, such as the applicable statute of limitations, which governs when a legal case must be filed, claims against governmental entities, and concomitant time restrictions, etc. are not addressed herein. The advice of an attorney is recommended in all cases.

An accident occurring on another’s premises, requires that certain matters be immediately addressed by either the injured person or any witness thereto.

The incident must be immediately reported if it takes place in a commercial establishment.   Most businesses have accident reporting procedures and an incident report must be filled out by the business. Often, the injured party may obtain a copy of this. This serves to place the business on notice that a person was injured on their premises and to document that the injury occurred at the time and place the injured party indicates.

Most commercial buildings and a fair number of private residents have video cameras monitoring the premises. This should be requested immediately after an accident as it will leave little doubt as to the condition of the premises. This will also assist your experts at a later date when comparing your injuries sustained, with the mechanism of the accident. Also, your behavior will be documented and will indicate whether or not you share in any fault for your injury.

 A jury instruction exists that “presumes wrongdoing” against your defendant, if evidence that has been requested, is missing.

A prompt visit to either the emergency room or your physician is a necessity. Otherwise an insurance carrier will suggest your injury occurred somewhere other than their insured’s premises and/or that you were not severely injured, because a like person would seek out medical care forthwith.

The term “premises liability” is used, when it refers 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.

In premise liability cases, whether the behavior of the legal owner or occupant is reasonable or not, is not automatically imposed. The “defendant” actions, reasonable or not, depend on whether the owner is perceived as having created, or allowed, a dangerous or defective condition to exist on the property. The impact of reasonable actions is not limited to business entities and commercial property; it extends to residential properties as well.

The principal California jury instruction 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 would be foreseeable by a reasonable person who should be aware actually or constructively of the risk, then the law imposes liability, and, therefore, 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, whom a reasonably prudent person, under similar circumstances. should have foreseen would be exposed to the risk of harm.

Courts have held that even trespassers may be protected under this standard scope of reasonableness .

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, of any attendant danger.

Most retail business are required to inspect the aisles every thirty minutes and to record the inspection.  Sweep sheets are, therefore, maintained to document this activity. Now with video cameras being so prevalent in these stores, the inspections are, also, documented on stores video surveillance. The key issue, therefore, becomes whether or not the inspection is reasonable in relation to the business activity.

Whatever the process of inspection and record keeping, this will document whether the expected duty of care is being exercised, and whether that duty is was what would be expected by a reasonable person.

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.

However, once a hazard is discovered, then action must be taken to correct the situation and warn those who might be exposed to the hazard before remedial action can be implemented. The owner must also ensure 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.

Notwithstanding the foregoing discussion, a person who might be injured by the risk, may have responsibility to be aware of conditions he or she encounters. In California, this is referred to as comparative fault.

In general, no liability applies to the property owner if a person’s injury resulted from a danger that was open and obvious.

A person who choses to not pay attention to a dangerous condition, that a reasonable person would acknowledge and avoid, will be held comparatively liable for their injury, suffered by encountering that dangerous condition. One of the few and only exceptions to this apply when the land owner/occupier blocks the only reasonable path in or out of an area and causes the injured person to transverse a dangerous landscape to enter or leave a premise.

Once again, as with most personal injury matters, a skilled, knowledgeable and competent attorney will be able to navigate the body of rules that govern premises cases. If you have been injured by the actions of another, our skilled legal staff of attorneys will be able to assist you.

For further information, contact us.