November 10, 2007

Premises Liability Defense

Background and expertise
The firm's collective experience in defending premises liability claims is extensive, having represented two of the largest self-insured retailers in the country. Constructive notice defenses, the standard of care in the industry, expert witnesses, security and lighting issues, maintenance and record keeping policies, third party issues, and lessee/lessor contract provisions are all areas that have been addressed. We have also been successful in the defense of suspicious claims. Locating, preparing and defending company witnesses is also key factor to our success in these cases.

Notable cases
A California appellate court has broadened the scope of liability for landowners in Alcaraz v. Vece, 39 Cal. App. 4th 1447 (1995). The case arose out of an injury on a parking median when a passerby stepped into a broken water meter box and sued the apartment owner rather than the city who owned the meter and the land it was on. Traditionally the landowner has no duty over land that he does not manage, posses or control. Nor is there a duty to warn of dangers known or otherwise beyond one's property, as long as the landowner did not create the danger. Commercial property owners have been found liable under an exception to this rule for injuries on another’s property when they received a commercial benefit from the property and had some control over it. The Alcarz court has eliminated the requirement of commercial benefit as defendants had some type of control over the property, knew tenants would use the adjacent land and had notice of the dangerous condition. Without the commercial benefit requirement, liability of property owners will likely be expanded as most property owners have the ability to exert some minimal amount of control over adjacent premises not owned or controlled by them.

In Peterson v. Superior Court, (1995) the California Supreme Court unanimously overturned the controversial case of Becker v. IRM, 38 Cal.3d454 (1985) which held that a residential landlord may be held strictly liable on a product liability theory for injuries resulting from latent defects on rental premises. In Becker the Rose Bird court held that a tenant injured by an un-tempered shower door could hold the landlord strictly liable for latent defects in the premises which existed at the time of rental. Peterson slipped and fell in a slick bathtub and sued the hotel operator under Becker. The court of appeal held that Becker applied to hotel rooms. The Peterson Supreme court reversed holding that landlords and hotel operators were not analogous to product manufacturers, distributors and retailers as items such as bathtubs installed in premises left the stream of commerce when they were installed. "The mere circumstance that it was contemplated customers of these businesses would use the products in question or be benefited by them does not transform the owners into the equivalent of retailers of the products" Landlords often cannot exert pressure on a manufacturer to make the product safe and cannot share the cost of insuring tenant safety as the landlord and the manufacturer are not in a continuous business relationship.

In an interesting twist the California court of appeal in Trujillo v. G.A.Enterprises, (1995) has defeated the ability of a property owner to successfully move for summary judgment on a criminal assault case on its property. A fight occurred inside a McDonalds restaurant franchise located within a private shopping area managed by Victoria Court Management. It was alleged essentially that the security guard was negligently hired by Victoria and that he negligently failed to control the fight or protect one of the patrons who was the target of the fight. The court distinguished Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993) as there the court only held that there was no duty to provide security in the absence of prior similar attacks. Here, even though there were no prior attacks, Victoria took steps to insure safety by hiring a security guard and by doing so imposed upon itself the obligation to act affirmatively to protect customers. The Trujillo court held that the security guard must act reasonably to protect customers and that such a question is one of fact that cannot be decided on summary judgment. The court also noted that the business that hired the guard could be liable for failure to hire a competent guard.

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