Holding public entities liable for dangerous conditions

The rules are somewhat different than for privately owned premises, but proving the case is very similar

Mark Zanobini
2014 June

When someone enters a property, they have a reasonable expectation of not getting injured. This means that the owner of the property (or non-owner resident/tenant) is responsible for maintaining a relatively safe environment. This is known as “premises liability.”

The legal theory of premises liability holds property owners and residents liable for accidents and injuries that occur on that property.  Premises liability has also been described as the liability for a landowner for certain torts that occur on the real property. This can range from injuries caused by a variety of hazardous conditions, including open excavations, uneven pavement, standing water, crumbling curbs, wet floors, snow-covered walkways, icy sidewalks, falling objects, inadequate security, insufficient lighting, concealed holes, improperly secured mats, or defects in chairs or benches.  For example, a courier delivering a package may sue a landowner or occupier for injuries if he slips and falls on an oil slick in the driveway. But if that same courier happened to be intoxicated or otherwise acted in an unsafe way, then he may not have a valid claim or his claim could be compromised. 

In California, liability is determined by the condition of the property and the activities of both the owner and visitor. It is important to remember that an occupier of land, such as an apartment tenant, is treated in the same manner as a landowner in most situations.

For premises liability to apply:

• The defendant must possess the land or premises

The plaintiff must be an invitee or, in certain cases, a licensee.  Traditionally, trespassers were not protected under premises liability law.  However, in 1968, the California Supreme Court issued a vastly influential opinion, Rowland v. Christian (1968) 69 Cal.2d 108, which abolished the significance of legal distinctions such as invitee, licensee, or trespasser in determining whether one could hold the possessor of a premises liable for harm. The Supreme Court of California replaced the old classifications with a general duty of care to all persons on one’s land, regardless of their status. The test is whether “the owner acted as a reasonable person in view of the probability of injury to others.”

There must be negligence — a breach of the duty of care — or some other wrongful act. In recent years, the law of premises liability has evolved to include cases where a person is injured on the premises of another by a third person’s wrongful act, such as an assault. These cases are sometimes referred to as “third party premises liability” cases and they represent a highly complex and dynamic area of tort law. They pose especially complex legal issues of duty and causation because the injured party is seeking to hold a possessor or owner of property directly or vicariously liable when the immediate injury-producing act was, arguably, not caused by the possessor or owner.

Public entities can also be held liable for a dangerous condition on public property

California Government Code section 835 allows plaintiffs to hold a public entity liable for injuries caused by a dangerous condition of its property. To prevail under this section, a plaintiff must show the following six elements:

(1)  That [defendant] owned or controlled the property;

(2)  That the property was in a dangerous condition at the time of the incident;

(3)  That the dangerous condition created a reasonably foreseeable risk of the kind of accident that occurred;

(4)  That negligent or wrongful conduct of [defendant]’s employee acting within the scope of his or her employment created the dangerous condition; or That [defendant] had notice of the dangerous condition for a long enough time to have protected against it;

(5)  That [plaintiff] was harmed; and

(6)  That the dangerous condition was a substantial factor in causing [plaintiff]’s harm. (Judicial Council of California, Civil Jury Instructions (CACI) § 1100 (Dec. 2008 Edition).)

While the language used for establishing liability against a private entity versus a public entity is different, the practical application of proving the case is substantially similar.

As a good rule of thumb there are ten critical inquiries in every premises case, whether public or private

• Is the condition or place dangerous?

• Have there been other accidents at or near the location?

• Who owns the property and is there insurance, or in the case of a public entity, funding?

• Who are all the possible defendants?

• Who owns it?

• Who controls it?

• Who maintains it?

• Who’s working on it?

• Knowledge of the condition, is it obvious or hidden?

• What about the client?

- Accident prone?

- Clumsy?

- Impairment involved?

- Prior accident history?

• Invitee, guest or trespasser?

• Were the premises being used properly?

• Are there witnesses that need to be located and interviewed?

• How serious is the injury?

Mark Zanobini Mark Zanobini

Mark J. Zanobini is an experienced trial attorney who is the principal shareholder of the Law Office of Mark J. Zanobini, P.C.  He has successfully handled all types of catastrophic personal injury and wrongful death cases including those caused by auto accidents, product liability, dangerous premises or medical negligence.
Mr. Zanobini is a graduate of UC Berkeley and the University of San Francisco School of Law. He is on the board of directors of the San Francisco Trial Lawyers Association and is an active member of many other trial and consumer organizations

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