Elements for proving the existence of negligence or fault in a slip and fall or premises liability incident

10 Jan, 2012

A failure to warn or repair the condition constitutes negligence. Rowland v. Christian (1968) 69 Cal 2d 108, Fitch v. Le Beau (1969) 1 Cal App 3d 320.  The landowner has an affirmative duty to use ordinary care to keep the property in a reasonably safe condition and is liable for injuries caused by uncorrected condition that would have been discovered in an ordinarily careful inspection.  Swanburg v. O’Mectin (1984) 157 Cal.App.3d 325, 330, 203 Cal.Rptr. 701.

 

Indeed, where the land owner is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude that a failure to warn or repair the condition constitutes negligence. Rowland v. Christian (1968) 69 Cal 2d 108, Fitch v. Le Beau (1969) 1 Cal App 3d 320.

 

Once a landowner knows or should know about an unreasonably dangerous condition on his property he has an affirmative duty to either repair or warn individuals who have a right to be on the premises of the dangerous condition. Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d. 479, 227 Cal.Rptr. 465. See also Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1198 (landlord must exercise reasonable care with respect to those on the property).

 

In determining, whether the Defendants breached a duty of care to Appellant, the trier of fact must balance the magnitude of the harm likely to result from the defendant’s conduct against the social value of the interest that defendant is seeking to advance and the ease with which the defendant could have taken precautions to avoid the risk of harm. Musgrove v. Ambrose Property (1978) 87 Cal.App.3d 44, 53, 150 Cal.Rptr. 722, 726.

 

The Supreme Court’s holding in Rowland v. Christian (1968) 69 Cal 2d 108, 112,113 specified  the general criteria for determining, in effect, whether to impose a duty of care on the landlord.  These include such factors as the foreseeability of harm; the certainty of injury; the proximity of the conduct and the injury; the moral blame ascribed to the conduct; the policy of preventing future harm; the extent of the burden and consequence to the community of imposing the duty; and the availability, cost and prevalence of insurance.

 

CACI 1001 defines the basic duty of case that governs the liability issues in this case.  It provides as follows:

“A person who [owns/leases/occupies/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/controls] property must use reasonable care to discover any unsafe condition and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. “

 

CACI 1103 then defines what constitutes an unsafe condition, and it provides as follows:

“[Name of Defendant] was negligent in the use or maintenance of the property if:

  1. A condition on the property created an unreasonable risk of harm.
  2. [Name of Defendant] knew or, through the exercise of reasonable care, should have know about it; and
  3. [Name of Defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.”