The term "premises liability" refers to the liability
of certain persons for injuries and damages to others arising
from the ownership or possession of real property. In California,
premises liability is based on general principles of negligence
and is controlled both by statute and case law.
As in any other negligence action, the injured person must
establish the following: (1) the existence of a duty on the
part of the defendant to use due care; (2) a breach of this
legal duty; and (3) the breach as the proximate or legal cause
of the resulting injury.
Premises liability actions have traditionally involved "slip
and fall" or "trip and fall" causes of action.
Premises liability is not, however, limited to such causes of
action and includes, among other things, construction accidents,
dog bite cases, and injuries caused by the negligent or willful
conduct of third persons on the premises involved.
In determining who is liable in a premises liability action,
the crucial elements are ownership, possession, and control
of the premises. The person who owns, possesses, or controls
the premises is the one responsible for any injuries arising
from a condition of the premises.
Without the crucial element of control over the subject premises,
no duty to exercise reasonable care to prevent injury on the
property can be found.
In determining whether the possessor of land owes a duty to
the injured victim, a court must balance a number of considerations;
the major ones are:
- the foreseeability of harm to the plaintiff;
- the degree of certainty that the plaintiff suffered injury;
- the closeness of the connection between the defendant’s
conduct and the injury suffered;
- the moral blame attached to the defendant’s conduct;
- the policy of preventing future harm;
- the extent of the burden to the defendant and consequences
to the community of imposing a duty to
- exercise care with resulting liability for breach; and
- the availability, cost, and prevalence of insurance for
the risk involved.
An owner or possessor of premises is under a duty to others
by virtue of that possession or ownership to act reasonably
to keep the premises safe and prevent persons from being injured.
A greater degree of care is generally owed to children because
of their lack of capacity to appreciate risks and to avoid danger.
If there are any latent or concealed perils on the land, the
possessor is under a duty to exercise ordinary care either to
make the condition reasonably safe for those coming onto the
land or to give such persons a warning adequate to enable them
to avoid the harm. Indeed, where the occupier of land is aware
of a concealed condition involving, in the absence of precautions,
an unreasonable risk of harm to those coming in contact with
it, and is aware that a person on the premises is about to come
in contact with it, the trier of fact can reasonably conclude
that a failure to warn or to repair the condition constitutes
A store owner exercises ordinary care to prevent injury to
patrons by making reasonable inspections of the portions of
the premises open to patrons, and the care required is commensurate
with the risks involved. If the owner operates a self-service
grocery store, where customers are invited to inspect, remove,
and replace goods on shelves, the exercise of ordinary care
may require the owner to take greater precautions and make more
frequent inspections than would otherwise be needed to safeguard
against the possibility that a customer may create a dangerous
condition by disarranging the merchandise and creating potentially
A possessor’s duty is not limited to keeping the physical
property in a safe condition. The premises alone may involve
no dangers, but the condition may be unsafe because of the activity
taking place on the premises. In such a case, the possessor
must exercise due care to ensure that such activities do not
harm persons coming onto the premises.
In addition to the duties relating to the condition of the
premises and the conduct of activities on the premises, a possessor
of land is, under certain circumstances, under a duty to control
the conduct of third persons coming onto the premises. An owner
of land has a duty to take affirmative action to control the
wrongful acts of third persons that threaten invitees where
the owner has reasonable cause to anticipate such acts and the
probability of injury resulting from such acts. This duty is
based on the special relationship between the landowner and
the invitee and the general duty to exercise reasonable care
in the management of one’s property.
A duty to take affirmative action to control the wrongful acts
of a third party will be imposed only where such conduct can
be reasonably anticipated. Foreseeability is a crucial factor
in determining the existence of such a duty. Moreover, foreseeability,
when analyzed to determine the existence or scope of a duty,
is a question of law to be decided by the court. With regard
to the question of the scope of a landlord’s duty to provide
protection from foreseeable third party crime, the scope of
the duty is determined in part by balancing the foreseeability
of the harm against the burden of the duty to be imposed.
Every case begins with the filing and service of a Summons and
Complaint. The Complaint will contain one or more "causes
of action" such as "Breach of Contract" or "Fraud".
Service Of Complaint
After the Summons and Complaint have been filed with the court,
they must be properly served on the defendant(s). If the defendant(s)
will accept service, he/she may sign an Acknowledgment of Service."
Otherwise the documents will have to be formally served.
Response To Complaint
The Defendant(s) have 30 days from the date of service of the
Summons and Complaint to serve on the Plaintiff(s) either an
Answer to the Complaint or a pleading challenging the sufficiency
of the the Complaint. Responses challenging the sufficiency
of the Complaint include a motion called a "Demurrer"
and a "Motion To Strike"
Hearing Of Challenges To Sufficiency
Of Complaint (If Applicable)
If the defendant(s) decide to file a demurrer or motion to strike,
these motions must be heard and ruled upon before the matter
may proceed. This can take up to 2 months. If such motion is
sustained and the court grants leave to amend the Complaint,
a new complaint must be drafted and served and the process starts
over. Sometimes a second demurrer or motion will be filed causing
Once the Complaint and Answer have been filed both parties commence
"discovery" procedures by which the evidence necessary
to prosecute both sides of the case. Depending on the nature
and complexity of the case, one or more of the following discovery
devices may be used by the parties:
- Interrogatories: Written questions which must be answered under oath.
- Request For Production Of
Documents: Demands for production of documents
by the parties involved.
- Requests For Admission: Requiring the parties to say which allegations they affirm
and which they deny.
- Deposition: The
parties may be required to appear in the opposing attorney's
office to answer questions under oath in front of a court
reporter. Depositions can also be taken from 3rd parties.
- Subpoena Documents From
Third Party: Documents may be subpoenad from 3rd
parties such as banks and employers.
Discovery Motions (If
If a party fails or refuses to comply with discovery requests,
it may be necessary for the party propounding the discovery
to make a motion in court to compel responses. If the court
grants the motion, further responses will be made. If those
responses are still inadequate, another motion may be made and
the court can sanction (fine) the resisting party. In extreme
cases the court can even terminate the action in favor of the
Throughout the case the court will set a series of Case Management
Conferences to be attended by attorneys for all parties. These
hearings are designed to determine whether the case is ready
for trial. When the court feels that a case is ready for trial,
it will set the date for trial and make orders concerning completion
of discovery and final preparation for trial.
Settlement negotiations may proceed throughout the trial. Often
the court will require the parties to try a mediation of the
issues or will set a "Mandatory Settlement Conference"
(MSC) before the trial date. Settlement negotiations general
become more intense as the trial date approaches.
The vast majority of cases settle before trial. However if the
parties cannot settle the case, the only way to resolve the
issues is by way of trial.