One of the most persistent urban legends in premises liability law is the burglar who breaks into someone’s home, is injured, and sues the property owners. In a few cases, California landowners do owe a duty of care to trespassers, but such instances are quite limited. However, in most circumstances, landowners have more liability exposure than tortfeasors (negligent drivers), so landowner negligence victims are often entitled to significant compensation.
To determine duty, many states use a common-law sorting system that classifies victims as invitees (guests with permission to be on the land and whose presence benefits the landowner), licensees (guests with permission to be on the land), and trespassers (guests without permission to be on the land). However, this system is rather unwieldy, because many of the categories overlap, and arcane, because few people know or care who or what a “licensee” is. So, a little over a decade ago, most California courts started applying a general duty of care in these cases, which varies according to several factors:
- Property Location: Business-owners and others who encourage people to come onto their property must take better care of it than private homeowners, or commercial owners at least have more of a responsibility to warn about possible safety hazards.
- Likelihood of Similar Visits: Older adults go to nursing homes and teenagers go to high school athletic fields, so the required degree of care is different.
- Likelihood of Harm: Generally speaking, swimming pools and construction sites are more dangerous than churches and synagogues.
- Probable Severity of Harm: For the most part, the possible injuries at construction sites and swimming pools are also much more serious than the ones worshippers may sustain at synagogues and churches.
- Knowledge of Hazard: Such knowledge can be actual (did know) or constructive (should have known).
- Possible Protection: Owners could effectively prevent dog bites by digging moats around their property and hiring security guards, but such efforts are clearly too costly.
- Extent of Control: Owners who lease property to a third party have less liability for falls and other incidents than owners who actually control the premises.
The jury may also consider any other factors that the judge considers to be relevant.
Falls are the leading cause of accidental injury in the United States, as there are twice as many fall-related emergency room visits as motor vehicle crash-related visits. The injuries are quite serious, especially among young children and older adults.
Knowledge is often a key issue in landowner liability cases in general, and slip-and-fall cases in particular. Most California court still use the analysis first set forth in Anjou v. Boston Elevated Railway Company (1911), which is also known as the banana peel case. Ms. Anjou slipped on a banana peel at a busy Boston train terminal. At trial, witnesses consistently testified that the offending peel looked as if it had been “tramped over a good deal,” because it was “flattened down, and black in color;” in fact, “every bit of it was black.” These details loom large in the holding of the case. For its part, the railroad company denied that it knew anything about the peel, and therefore argued that it was not responsible for Ms. Anjou’s injuries.
In finding that the railroad company was indeed liable, Justice Arthur Rugg concluded that knowledge of the defect could be imputed depending on the color of the peel.
- Yellow Peel: If the hazard had just occurred recently, the plaintiff needs to provide direct evidence of knowledge, such as a bathroom cleaning report about a wet spot on the floor.
- Black Peel: Since the banana peel was black, the court concluded that it had been on the floor quite some time, and therefore the owner should have known about the hazard.
- Brown Peel: Pardon the expression, but brown peels are in a grey area, and more evidence is needed to establish or disprove knowledge.
Victims in these case are normally entitled to compensation for both economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
The duty to make the premises safe includes a duty to reasonably control dangerous animals. Nationwide, dog bite claims account for over a third of homeowner insurance claims. Last year in California, there were 1,684 claims (first in the nation) worth a collective $75.8 million (first), for an average of $44,983 per claim (second).
The reason for the high numbers is that California is a strict liability state when it comes to liability for animal attacks. Owners are always responsible for damages that their animals inflict, even if the dog showed no vicious propensities in the past or the owner knew nothing about such tendencies. To reduce the amount of compensation or deny liability altogether, the insurance companies often argue that the victims provoked the dogs. Determining provocation is a case-by-case decision, but most courts require a physical act of teasing or other provocation.
About the Author:
Personal injury attorney John Rapillo has over 35 years helping accident victims get the compensation they deserve after suffering an injury. He handles all personal injury matters.