Property owners should know duties to reduce premises liability exposure

Litigation is a last resort to resolve any legal dispute. All parties wish the injury never happened. Litigation costs time, money, energy and other resources for everyone involved. Unfortunately, the only way for the legal system to remedy a person's harm is to hold the responsible party liable. Yet property owners are often unprepared when a tenant or visitor suffers severe injuries on the property. While many injuries that result in premises liability claims are preventable, not all owners understand their legal responsibilities regarding maintenance of their property or their potential financial exposure if an injury occurs.

Educating Property Owners

Property owners have nondelegable duties to use reasonable care to keep their property in a reasonably safe condition; to inspect and discover unsafe conditions on their property; and to repair, replace or adequately warn of unsafe conditions on their property.

Sometimes the unsafe condition is not immediately apparent to the owner, such as irregularities in the rise and run of stairs. However, there are many cases where the owners were aware of the condition that ultimately caused someone injury on their property, but they failed to appreciate that the condition was unsafe and that it could seriously injure someone. For example, the owner knew that the stair handrail was not securely fastened or that the handrail did not extend the full length of the stairway, but did not think the condition was hazardous and would lead to injury.

Attorneys should advise owners regarding the kinds of conditions that can cause injury and the magnitude of potential injuries. Providing specific examples are helpful. For instance, falls are a common cause of an injury and basis for premises liability claims. Falls can occur due to conditions such as uneven pavement or other trip hazards, a wet or slippery surface, damaged steps or a missing stair handrail. Injuries resulting from a fall may be relatively minor, such as bruises, cuts or broken bones. However, falls can also lead to catastrophic injuries, such as a brain injury, spinal cord injury or death. The more significant the injury and resulting limitations of the plaintiff, the greater potential financial exposure the defendant will face in a lawsuit.

Good Practices

Owners should conduct regularly scheduled inspections of their property for security issues and unsafe conditions. It is best to work off of a checklist detailing all of the areas that should be inspected and the kinds of conditions to look for to avoid missing an important item. Regular inspections are necessary because actual notice of an unsafe condition is not required. An owner may be charged with constructive notice if an unsafe condition existed long enough that it should have been discovered during a regular inspection. Ortega v. Kmart, 26 Cal. 4th 1200 (2001).

Owners should also have an annual evaluation conducted by a qualified safety professional to look for hazards that may have been overlooked during the periodic inspections, and to check for compliance with relevant building codes. Generally, older structures need only comply with building codes that were in place at the time of construction instead of the current code, absent subsequent alterations or improvements. An owner whose property violates an applicable code is considered presumptively negligent if that violation is a substantial factor in causing a person's injury.

Building codes represent minimum safety standards. An owner may still be found liable in a premises liability case where there is no relevant code or despite compliance with the applicable code. This is because it may not have been reasonable under the circumstances to have allowed the condition to remain as is. For example, an exterior staircase constructed with a disjointed handrail may have been code compliant when constructed over 50 years ago. Nevertheless, the handrail would not meet today's codes and a jury could find that it was an unsafe condition that the owner should have remedied in the exercise of reasonable care. It is therefore a better practice to ensure that the property complies with current building codes, even if not required.

An owner's duties are considered nondelegable, which means that an owner cannot escape liability for failing to maintain his or her property in a safe condition by assigning the duty to someone else. Brown v. George Pepperdine Foundation, 23 Cal. 2d 256 (1943); Srithong v. Total Investment Co., 23 Cal. App. 4th 721 (1994). If an owner decides to delegate inspections or management of their property to someone else, it is essential that the owner makes his or her expectations clear and that there is an agreed upon checklist for inspections. Ideally, the expectations should be made verbally and in writing. It is dangerous to assume that the property manager knows what they should do and what their expected role is since not all property managers are alike. Some property managers perform more superficial inspections focusing on items such as litter, graffiti and chipped paint.

Owners who receive notice of potential safety or security issues need to promptly investigate and make necessary repairs. If there are tenants, keep them informed as to how and when repairs will be made. It is a good idea to keep a written record of when inspections were made, significant discoveries during inspection, tenant complaints and repair requests, and details regarding how and when issues were resolved.

Lastly, it is important that owners obtain a comprehensive general liability insurance policy with sufficient coverage to protect the value of their property and assets in case a premises liability claim becomes unavoidable.

Conclusion

Property owners who take proactive measures to prevent and reduce the likelihood of injuries on their property are in the best position to avoid undesired litigation over premises liability claims. Whether the owner is motivated by protecting their asset, protecting others, or both, owners should understand that preventing an injury is a win-win situation. As Benjamin Franklin once said, "an ounce of prevention is worth a pound of cure."