Do I Need Padded Walls?


Simon Offord

by Simon Offord on March 30, 2011

in Litigation, Real Estate Law

Sadly, when someone gets injured on a landowner’s property, one of the first thoughts the landowner may have is “I am going to be held liable for this?”  This article is meant to give landowners a brief overview of liability for injuries that occur on their property, and touch on a few of the more common situations in which landowner liability may arise.

Generally

Every landowner owes a duty of care to third persons who enter onto their property.  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 want of ordinary care.

In order to be liable, the injured party must show that the landowner had either possession or control of the property and 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 depends on several factors. These factors include: whether the landowner acted as a reasonable person under all circumstances, 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, and 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.”

An important qualification of the landowner’s liability is that the standard of care is a duty of “ordinary” care.  Thus, the landowner does not have a duty of extraordinary care and is not an insurer of safety.  So no, you probably do not need padded walls.

Dangerous Conditions

Oftentimes, injuries on one’s property are due to some inherently dangerous condition.  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 forseeable that the condition may cause injury even though it is obvious.  Therefore, it is always best to give warning if practicable.

The landowner must be wary of the fact that simply because a tenant is in possession of the land, the landowner is not relieved of liability.  Therefore, it is important for landlords to place warnings or keep the property in a reasonably safe condition, instead of relying on the tenant to do so.

Dog Bit the Mailman?

Oftentimes people want to know if they are responsible if their dog bites someone while on the landowner’s property.  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.

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 (no, that is not a joke), or by the express or implied invitation of the owner.  This rule extends to injuries that occur to 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.

If a person is injured by a wild animal kept by the landowner, strict liability is applied and thus the landowner will be held liable for any injury that occurs on his/her property.

Finally, in order to be liable for injury by insects, the landowner must know or reasonably should know that there was a danger or potential danger of the harmful insect.

Conclusion

These are just a few of the situations that in which a landowner may find themselves liable for injuries on their property.  Stay tuned for future blog articles that detail some of the other situations in which a landowner can be held responsible for injuries on their land.  In the meantime, if you have questions about potential landowner liability, the Law Offices of Peter N. Brewer would be happy to answer those questions.  The Law Offices of Peter N. Brewer can be reached at (650) 327-2900, or on the web at www.BrewerFirm.com.

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