The Condition On The Premises Must Not Be “Open And Obvious”
In order for a plaintiff to prevail in a premises liability lawsuit due to a hazard that is considered to be a dangerous condition, it must not be an open and obvious condition and thus the defendant had no duty to warn plaintiff of it or remedy the condition. However, the question of whether a condition is dangerous, and whether it is open and obvious, is generally an issue of fact for the jury to decide.
California Civil Code Section 1714 in a Premises Liability Lawsuit
“Civil Code section 1714, subdivision (a), provides in relevant part: “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property.” In order to state a cause of action for negligence, the plaintiff must state facts showing that the defendant had a duty to the plaintiff, that the duty was breached by negligent conduct, and that the breach was the cause of damages to the plaintiff.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)
“Premises liability is a form of negligence based on the holding in Rowland v. Christian (1968) 69 Cal. 2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.”
“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. In order to establish liability on a negligence theory, the plaintiff must prove duty, breach, causation and damages. The plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability. These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ortega vs. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
What Is A Dangerous Condition For Premises Liability Lawsuit?
“A dangerous condition is defined as ‘a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property… is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The existence of a dangerous condition is ordinarily a question of fact but “can be decided as a matter of law if reasonable minds can come to only one conclusion.” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal. App. 4th 124, 131.)
Also, “[t]he fact that an accident occurred does not give rise to a presumption that it was caused by negligence. Instead, the injured plaintiff must establish sufficient facts or circumstances that support an inference of a breach of duty, to defeat a summary judgment motion by a defendant that is asserting due care was exercised. It is not enough for the plaintiff to provide speculation or conjecture that a dangerous condition of property might have been present at the time of the accident.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 432, citations omitted.)
Thus, courts have found that “premises liability may not be imposed on a public entity when the danger of its property is readily apparent.” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 560.) Likewise, with regard to private property owners, “because the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which should be obvious to him in the ordinary use of his senses.” (Danieley vs. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.) “Witkin puts the matter more succinctly when he writes, ‘… if the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty unless harm was foreseeable despite the obvious nature of the danger.’ (Id. at p. 122, quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 930, p. 301, italics in original.)
However, just because a defect is obvious does not automatically mean that the landowner owes no duty of care toward persons on the premises. “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. However, this is not true in all cases. ‘[I]t is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger [citation] may lead to the legal conclusion that the defendant’ owed a duty of due care to the person injured. (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, citations omitted, italics in original.)
Whether A Duty of Care Was Owed To The Plaintiff Is Question Of Fact For The Jury
Also, “‘[i]t is ordinarily a question of fact whether in particular circumstances the duty of care owed to invitees was complied with, … whether the particular danger was obvious, whether an invitee was contributorily negligent, or whether the defect was trivial.’ In Powell v. Vracin, the court noted that ‘Whether the step from the floor level to the ground and the ground immediately outside the opening were so negligently maintained as to render defendants liable in damages was a question of fact for the jury.’” (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260, citations omitted; see also Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 374 [holding that whether the danger created by an open planter box was so obvious as to relieve the defendant of its duty to warn the plaintiff was a question of fact].)
“There is one line of cases, however, in which the obviousness of the condition does not afford the defendants relief from liability. That line consists of those cases where ‘people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did.’” (Ibid.) In such cases, the question of whether the defendant was negligent in failing to warn of or correct the defect should be submitted to the jury.” (Ibid.)
Assumption Of The Risk Doctrine In A Premises Liability Lawsuit
In addition, “[a]s explained in Beauchamp v. Los Gatos Golf Course, the ‘obvious danger’ exception to a landowner’s ordinary duty of care is in reality a re-characterization of the former assumption of the risk doctrine, i.e., where the condition is so apparent that the plaintiff must have realized the danger involved, he assumes the risk of injury even if the defendant was negligent. As noted, this type of assumption of the risk has now been merged into comparative negligence. In addition, recent authority makes it clear that while a readily apparent danger may relieve the property owner of a duty to warn, it no longer necessarily absolves him of a duty to remedy that condition.” (Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665, citations omitted.)
Obvious Nature Of The Condition
In Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, the Court of Appeal held that a jury instruction stating that “a business proprietor cannot be held liable for an injury resulting from a danger which was obvious or which should have been observed in the exercise of ordinary care” was incorrect. (Id. at p. 116.) “[U]nder certain circumstances, an obvious or apparent risk of danger does not automatically absolve a defendant of liability for injury caused thereby.” (Id. at p. 118.) “A review of Beauchamp makes it even more apparent that the obvious nature of a danger is not, in and of itself, sufficient to establish that the owner of the premises on which the danger is located is not liable for injuries caused thereby, and that although obviousness of danger may negate any duty to warn, it does not necessarily negate the duty to remedy.” (Id. at p. 119.)
Common Defense Arguments In Premises Liability Lawsuits
In many premises liability lawsuits, the defendant contends that there was no dangerous condition on its property, or if there was, the danger posed by the curb was open and obvious and thus it had no duty to warn of the condition or attempt to remedy it. Defendants will point to several facts in support of its contention, including but not limited to facts such as: that the plaintiff had visited the premises often before, that the plaintiff has never seen anyone trip and fall on the alleged dangerous condition(s) before in the past, and that the defendant has never had any other complaints about other people tripping or being injured by the alleged dangerous condition(s) before in the past. The defense will also assert that the construction and design of their premises complies with all building codes and standards such as the federal Americans with Disabilities Act (ADA). These are common assertions by defendants in premises liability lawsuits for personal injuries suffered by plaintiffs.
The defendant will therefore conclude that these assertions show that their premises was not maintained in a dangerous condition, and even if it was, the condition was open and obvious so it had no duty to warn of it or remedy it. The defendant will contend that plaintiff knew or should have known of the existence of the alleged dangerous condition, that the plaintiff had a clear view and line of vision, that the premises and any alleged dangerous condition was itself of a reasonable, standard design, and there were other defects in it, and that the the existence of the alleged dangerous condition did not cause the accident. Defendants will contend that the plaintiff was simply negligent in failing to look where he or she was going, and that it had no duty to warn him or her of the obvious nature posed by the alleged condition.
The Existence Of A Dangerous Condition Is A Question Of Fact For The Jury
However, “‘[t]he existence of a dangerous condition is ordinarily a question of fact but “can be decided as a matter of law if reasonable minds can come to only one conclusion.”’” (Mixon v. Pacific Gas & Electric Co., supra, 207 Cal.App.4th at p. 131, citations omitted.) Likewise, whether a condition is so open and obvious as to relieve defendant of any duty to warn of or remedy the condition is generally a question of fact. (Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d at p. 122.)
It is important that the plaintiff presents evidence that raises triable issues of material fact with regard to whether the premises was maintained in a dangerous condition and whether the plaintiff had a clear view and line of vision while on the defendant’s property. The plaintiff’s testimony during its deposition is critical. It is important for the plaintiff’s lawyer to prepare the plaintiff to testify appropriately. Moreover, the Plaintiff’s counsel should retain a safety expert early on in the case to evaluate the condition on the defendant’s property. The expert should submit declarations and reports in support of the plaintiff’s case. The safety expert should state that the premises constituted a dangerous condition because it was not properly maintained. In doing so, the property constituted a hazard and a risk of injury to those on the property.
Triable Issue Of Material Fact In Premises Liability Lawsuits
The plaintiff must present evidence that raises a triable issue of material fact with regard to whether the premises contained a dangerous condition. The plaintiff must show that the defendant had a duty to warn plaintiff about it or take steps to remedy the danger. A jury should be allowed to determine whether the premises was maintained in a dangerous condition. As a result, the court should not grant summary judgment of the plaintiff’s negligence and premises liability claims based on the alleged fact that the condition was open and obvious. Rather, the case should proceed to trial and the jury should be allowed to decide the issue.
Plaintiff Must Use Reasonable Care When On Defendant’s Property
The defendant will also argue that the court should grant summary judgment and the premises liability lawsuit should be dismissed because plaintiff failed to use reasonable care when on its property. Again, the defendant will contend that its property was of a reasonable design and construction, the property was in good condition, there were no visibility obstructions, and there was nothing that prevented plaintiff from having a clear view of the alleged dangerous condition as he or she approached it. Defendant will claim that the plaintiff simply failed to look where he or she was going, and therefore it should not be held liable for the accident.
Again, however, the question of whether the plaintiff acted reasonably in failing to notice the injury-producing condition is a question of fact that should be resolved by a jury, not the court on summary judgment. (Mixon v. Pacific Gas & Electric Co., supra, 207 Cal.App.4th at p. 131; Osborn v. Mission Ready Mix, supra, 224 Cal.App.3d at p. 122; Beauchamp v. Los Gatos Golf Course (1969) 273 Cal. App. 2d 20, 34.) It is important that the plaintiff presents evidence raising triable issues of material fact with regard to whether its vision was obstructed which caused him or her to fail to see the dangerous condition. The plaintiff must also present an expert’s declaration, which will state that the maintenance of the property did not comply with industry safety standards and increased the risk of people on the property being injured and posed a safety risk. Therefore, the court should not grant summary judgment and dismiss the premises liability lawsuit based on the plaintiff’s allegedly unreasonable conduct in failing to notice the injury-producing condition on the property.
Trivial Defect Argument in Premises Liability Lawsuit
The defendant will also contend that the condition presented, at most, a trivial defect, and therefore it has no liability for the plaintiff’s accident and injury. The trivial defect doctrine was originally applied in actions against public entities and has been codified in the Government Tort Claims Act. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396.) “Under that legislation, injury resulting from a defect in public property is actionable only when the condition of the property ‘creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury….’” (Ibid, citation omitted.) However, the trivial defect defense has also been extended to private landowners sued for dangerous conditions on their premises. (Id. at pp. 396-399.) Where the facts are undisputed, the court may properly grant summary judgment upon a finding that the defect was trivial as a matter of law. (Ibid.) “In summary, persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Id. at p. 398.)
“The decision whether a crack or other defect in a walkway is dangerous does not rest entirely on the size of the depression. Although the size of a crack or pothole is a pivotal factor in the determination, ‘a tape measure alone cannot be used to determine whether the defect was trivial.’ ‘Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.’ ‘Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.’ The court should also consider the weather at the time of the accident, plaintiff’s knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566–567, citations and footnote omitted.)
Necessary Evidence In Premises Liability Lawsuits
In premises liability lawsuits, it is important to present the necessary supporting evidence in addition to expert opinions. It is important that the plaintiff shows that the defendant’s property was not reasonably designed nor constructed safely. It is also important to show that the defendant did not comply with all applicable codes. Expert opinions can assist in providing this supportive evidence. Under these circumstances, the court cannot conclude as a matter of law that the defect was trivial and therefore defendant had no duty to warn of it or rectify it. The court can only grant summary judgment based on the trivial defect doctrine where the undisputed facts show that the defect was so small and insignificant that the defendant landowner had no duty to warn people of it or take steps to remedy it. (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d at pp. 396-399.)
In premises liability lawsuits, it is important for the plaintiff to establish disputed facts with regard to whether the property was unsafe. Therefore, the court will not grant summary judgment based on the theory that the defect was trivial.
Notice Of The Defect Is Necessary to Win Your Premises Liability Lawsuit
Defendant will also argue that it cannot be held liable for the plaintiff’s accident and injuries because it had no notice of the existence of the defect. The defendant will assert that it never received any complaints about obstructions or injury-producing incidents on its property in the past. The defendant may contend that there is no other way for it to maintain its property, and other property owners have the same types of conditions on their properties – that there is nothing unsafe with its property and it meets all applicable industry standards. Therefore, the defendant will contend that the plaintiff cannot show that it had notice of any dangerous condition that caused him or her to trip and fall resulting in injury.
“Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises” (Ortega, supra, at p. 1206, citations omitted.)
Circumstantial Evidence Can Win Your Premises Liability Lawsuit
“The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances. The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Id. at pp. 1206–1207, citations omitted.)
In many premises liability lawsuits, most of the defendant’s evidence will attempt to avoid the issue of whether it had notice of the defect before the accident. In fact, the defendant may not present any evidence showing that it conducted regular inspections of the premises to look for dangerous conditions, nor will it present evidence of how long the subject condition existed – this is in favor of the plaintiff. It is important that the plaintiff establish that the dangerous condition existed for an extended period of time. The plaintiff’s expert should assert that the dangerous condition did not comply with industry practices, and thus presented a dangerous condition. Thus, the plaintiff must provide evidence indicating that the alleged dangerous condition existed for a long time, and as a result a reasonable trier of fact could infer that the defendant either knew or should have known that it posed a danger to people using its property.
Moreover, if the defendant’s own employees create the allegedly dangerous condition, a reasonable trier of fact can infer that the defendant was on notice that a dangerous condition existed. As a result, the court should not grant summary judgment and dismiss the premises liability claim based on the alleged lack of notice of the dangerous condition.
Substantial Factor Doctrine In Premises Liability Lawsuits
Finally, the defendant may argue that the plaintiff cannot prove that the defendant caused the accident, as the subject alleged defect was not a dangerous condition that defendant was required to warn plaintiff about and the alleged condition did not contribute to the plaintiff’s accident. However, it is important that the plaintiff presents triable issues of material fact with regard to whether the defendant was a substantial contributing factor in causing the accident.
“The law defines cause in its own particular way. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm.’” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313–1314, citation omitted.) “We agree with the comment of the BAJI Committee, which took its cue from Caldwell when it noted, ‘While there is no judicially approved definition of what is a substantial factor for causation purposes, it seems to be something which is more than a slight, trivial, negligible, or theoretical factor in producing a particular result.’” (Id. at p. 1314, citation omitted.)
In many premises liability lawsuits, the defendant will contend that its property was of standard design and construction and did not constitute a dangerous condition. It is important that plaintiff’s expert opines that the condition posed a safety hazard because it was dangerous. Thus, there is evidence that raises a triable issue of material fact with regard to whether the defendant was a substantial factor in causing or contributing to plaintiff’s accident, and the court should not grant summary judgment and dismiss the premises liability lawsuit based on the alleged lack of evidence of causation. The matter should be decided by the jury in a premises liability lawsuit.
Hire A Personal Injury Lawyer To Win Your Premises Liability Lawsuit
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