PROPERTY OWNER LIABILITY: WHAT IS THE DEFENDANT’S BASIC DUTY OF CARE?
Every person who owns or controls the property, has a basic standard of care to maintain that property in a safe condition. In every property owner liability case, there is a standard of care that must be satisfied. According to California Civil Jury Instruction (CACI) No. 1001, entitled Basic Standard of Care:
A person who owns, leases, occupies, or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who owns, leases, occupies, or controls property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.
In deciding whether the defendant used reasonable care, you may consider, among other factors, the following:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the same manner as the plaintiff did;
(c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether the defendant knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm;
(g) The extent of the defendant’s control over the condition that created the risk of harm; and
(h) Other relevant factor(s).
WHAT IS THE DUTY OWED TO A SPECIFIC PLAINTIFF IN A PROPERTY OWNER LIABILITY CASE?
The specific duties owed by a property owner to a visitor upon the premises depends on the plaintiff’s legal status at the time of the injury. The legal status of the plaintiff is a critical fact in a property owner liability case. This determines the extent of the defendant’s legal duties. Many states still use the traditional definitions of a person’s status on the premises to determine the duty owed by the property possessor. The three classifications of status are set forth below.
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement (Second) of Torts §329 (1965). There is only the duty to not willfully or wantonly injure the trespasser. There are certain fact patterns in which a legitimate invitee or licensee may exceed their permission and become a trespasser.
A licensee is one who has permission to enter the property. The possessor is required to refrain from knowingly exposing a licensee to a hidden peril or latent danger on the premises that the licensee could not reasonably be aware of. The possessor must also avoid willfully or wantonly injuring the licensee. One of the most common individuals who is a licensee is a social guest at defendant’s residence.
An invitee is one who has been invited onto the property. The possessor owes a high duty of care. The possessor must maintain the premises in a reasonably safe condition, to use reasonable or ordinary care, in accordance with the circumstances, to not do anything that might result in injury to the plaintiff; to not do anything that might make the plaintiff’s use of the premises dangerous; to protect the plaintiff against anything that threatens him or her with an unreasonable risk of harm and from dangers foreseeable by the arrangement or use of the premises; and an affirmative duty to inspect the premises and discover possible dangerous conditions that Plaintiff does not know exist.
In those states where the status distinctions have been eliminated, courts will look to the law of the state where the property is located and the reasonableness of the owner’s and the injured victim’s actions. In general, property owners or possessors owe a duty to keep the property reasonably safe and make repairs for all visitors except for trespassers. Factors that are considered in determining the duty owed by the defendant are:
(1) the circumstances under which the visitor came onto the property,
(2) the nature of the property (i.e. retail store, home, etc.),
(3) the reasonableness of the owner’s or possessor’s actions regarding repair of any dangerous conditions and/or warnings provided regarding the condition, and
(4) the foreseeability of the injury.
IS THERE A DUTY TO PROTECT AGAINST CRIMINAL ACTS OF A THIRD PARTY?
Landowners have a duty to maintain the land in their possession and control in a reasonably safe condition. In California, this duty also includes the duty to take reasonable steps to prevent foreseeable criminal acts of third parties. Ann M. v. Pacific Plaza Shopping Center, (1993) 6 Cal.4th 666, 674. The acts may be considered foreseeable if it can be shown that prior criminal acts of a similar nature occurred on the premises. As a result, plaintiff’s counsel can argue that the property owner was put on notice. Prior instances of similar conduct is critical to the case. Nonetheless, case law does establishes that prior instances are not required to establish foreseeability. Rather, the court should evaluate foreseeability based upon the “totality of the circumstances”. (Id. at. 677.) “If the place or character of the landowner’s business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it and to use such means of protection as are available to afford reasonable protection.” Nola M. v. University of Southern California, (1993) 16 Cal.App. 4th 421, 426.
WHAT IS CALIFORNIA’S DRAM SHOP ACT?
California Business and Professions Code section 25602 generally immunizes an establishment from liability to third parties for injuries resulting from the furnishing of alcohol to its patrons. “However, section 25602 does not preclude all actions against innkeepers [or other establishments] merely because they furnish alcohol.” Cantwell v. Peppermill, Inc. (1994), 25 Cal. App. 4th 1797, 1801. “ ‘[T]he proprietor of a place where intoxicating liquors are dispensed owes a duty of exercising reasonable care to protect his patrons from injury at the hands of fellow guests.” Id. “Although the proprietor is not an insurer of its patrons’ safety, he has a duty of care to protect patrons from the reasonable criminal or tortious conduct of third persons.” Id.
In the Cantwell case, the court held that section 25602 did not immunize the owner of a bar from liability to a patron who was stabbed by another intoxicated patron on the premises. The plaintiff’s complaint alleged that the bar owner knew numerous assaults and other crimes related to the consumption of alcoholic beverages had been committed on its premises, and had failed to take appropriate action to protect its patrons. Id. at 1800. The court noted that the purpose of the statute was to prevent a plaintiff who was injured by a drunk driver from suing the person or entity who had severed alcohol to the drunk driver, but it did not relieve the bar owner from liability for failing to protect its patrons from assaults by other intoxicated customers. Id. at 1802-1803. The court emphasized that “an innkeeper cannot with impunity encourage or permit its patrons to become drunk and belligerent to the point where they start assaulting other guests.” Id. at 1801.
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