“Ho Ho Holiday Mayhem!” Avoid the Unwanted Present of a Lawsuit During the Holidays


Simon Offord

by Simon Offord on December 19, 2011

in Landowner Liability

‘Tis the holiday season.  Time for family get-togethers and holiday parties, whether you like it or not!  However, what happens when Uncle Eddy has one too many egg nogs, trips over a present under the tree, and breaks his leg?  Not only has Uncle Eddy ruined the holidays, now you are left wondering:  “Am I going to be held liable for this?”  This article is meant to give a brief overview of liability for injuries that occur on one’s property.  Additionally, it touches on a few of the more common situations in which landowner liability may arise during the holiday season.

Landowner Liability Generally

Every landowner owes a duty of care to third persons who enter onto their property. So when Uncle Eddy dampens the holiday spirit and tries to sue you, are you going to be liable?

The old common law distinctions between invitee, licensee, or trespasser have been abolished.  Thus, whether you extended the invite to Uncle Eddy or not is irrelevant.  Instead, the basic principle applicable in California is that everyone is responsible for injury to another based on “his or her want of ordinary care or skill in the management of his or her property,” unless the injured party brought the injury upon him or herself willfully or by their own want of ordinary care

In order to be liable, the injured party must show…

1)      The landowner had either possession or control of the property

2)      The landowner knew or should have known of the risk-creating condition

If the injured party is able to show the above two conditions, the question of liability then depends on several factors. These factors include:

–          Whether the landowner acted as a reasonable person under all circumstances

–          The likelihood of injury and foreseeability of harm, probable consequences of such injury

–          The burden of reducing or avoiding the risk

–          The location of the land

–          The landowner’s degree of control over risk-creating condition

While each of these factors must be considered, the primary consideration is the foreseeability of risk.  The Court will then apply a balancing test to determine whether the landowner was “reasonable.”

As a result, it is hard to believe Uncle Eddy will be able to prevail in his suit (or be invited to spend the holidays with you next year), as it is not forseeable that someone would trip over a present under the tree and break their leg.

Dangerous Conditions

Oftentimes, injuries on one’s property are due to some inherently dangerous condition.  Thus, when you are setting-up that double diamond sledding course for the neighborhood kids, you must first consider what liability you may be exposing yourself to.

A landowner is required to keep the property in a reasonably safe condition and give warning of latent or concealed perils.  A landowner is generally not liable for injury from a danger that is obvious or should have been observed in the exercise of reasonable care.  However, in some conditions, a warning may still be necessary if it is foreseeable that the condition may cause injury even though it is obvious.  Therefore, even though it may seem obvious that the sled course may be dangerous and injury could result, is always best to give warning if practicable.

Dog Bit the Delivery Man?

With the holidays comes a huge increase in online shopping.  With more online shopping come many more packages delivered.  So what happens when Fido attacks the delivery man on Christmas Eve (other than the spouse finding out you waited until the last minute to get your online shopping done)?

Generally, a landowner is liable for damages suffered by a person who is bitten by a dog on the landowner’s property.  This is true regardless of the viciousness of the dog or the owner’s knowledge of the vicious tendencies of the dog.  So just because Fido has never done something like this before, that does not mean you are relieved of liability.

In order to be liable, the victim only has to show that he or she was on the landowner’s property performing duties imposed by law or postal regulations, or by the express or implied invitation of the owner.  This rule extends to injuries that are caused by dogs that the landowner authorized to be on the premises, even if the landowner was not the owner of the dog or aware of the dog’s dangerous propensities.   This is a fairly strict standard, so make sure to have Fido under control (and in the holiday spirit) when the delivery man comes-a-knocking.

Conclusion

The Brewer Firm wishes you and your loved ones a happy holiday season, with none of the above scenarios ruining this special time of the year.

You can read more articles on this topic and other real estate related topics on our firm blog at www.bayarearealestatelawyers.com . To learn more about our insightful attorneys’ we encourage you to visit our firm website at www.brewerfirm.com.


 

Related Posts Plugin for WordPress, Blogger...

Leave a Comment

{ 1 trackback }

Previous post:

Next post: