Chapter 10 Landlord's Liability for Tenant Injuries from Dangerous Conditions

• Library: Every Landlord's Legal Guide (Nolo) (2020 Ed.)

CHAPTER 10 Landlord's Liability for Tenant Injuries From Dangerous Conditions

How to Prevent Injuries

Maintain the Property

Comply With Building Codes

Warn of Dangers You Can't Fix

Solicit and Respond Quickly to Tenants' Safety Complaints

Install and Maintain Basic Safety Features

Don't Allow Dangerous Pets

Remove Dangers to Children

Take Special Precautions With Swimming Pools

Supervise Contractors and Other Workers

Liability and Other Property Insurance

Choosing Liability Insurance Coverage

What Liability Insurance Doesn't Cover

Choosing Property Insurance

Working With an Insurance Agent

Saving Money on Insurance

Your Liability for Tenant Injuries

Negligence

Violation of a Health or Safety Law

Failure to Make Certain Repairs

Failure to Keep the Premises Habitable

Reckless or Intentional Acts

Intentional Harm

The Law Makes You Liable

If a Tenant Was at Fault, Too

Tenant Carelessness

Tenant Risk-Taking

How Much Money an Injured Tenant Might Recover

As a landlord, you are responsible for keeping your rental property safe for tenants and guests. Otherwise, you might be liable for the harm that results from your neglect. Injured tenants can seek financial compensation for medical bills, lost earnings, pain, physical disability, disfigurement, and emotional distress. Tenants can also hold you responsible for property damage that results from faulty or unsafe conditions. Don't underestimate the consequences of a judgment against you: In extreme cases, a single personal injury verdict could result in business and even (in some situations) personal bankruptcy.

If a tenant is injured on your property, contact your insurance company the minute you hear about it—your policy probably requires it. Your agent will tell you what steps to take next, such as writing down the details of the accident. The majority of claims against landlords are settled without a lawsuit, usually though negotiations handled by your insurance company.

This chapter provides an overview of your liability for tenant injuries. Most important, it offers suggestions on how to avoid injuries and liability in the first place.

RELATED TOPIC

Related topics covered in this book include:

• Lease and rental agreement provisions covering landlords' and tenants' responsibilities for repairs, damage to premises, and liability-related issues, such as disclosure of hidden defects: Chapter 2
• How to minimize your liability for your property manager's mistakes or illegal acts: Chapter 6
• How to comply with state and local housing laws: Chapter 9
• Maintenance and how to avoid potentially dangerous situations on your rental property: Chapter 9
• Your liability for environmental health hazards: Chapter 11
• Your liability for crime on the premises, including injuries or losses to tenants by strangers or other tenants, and liability for drug dealing on rental property: Chapter 12
• Your liability for nonphysical injuries caused by intentional discrimination (Chapter 5), invasion of privacy (Chapter 13), and retaliatory conduct against the tenant (Chapter 16), and
• How to choose a lawyer and pay for legal services: Chapter 18.

Scenarios Where Landlords Have Been Held Liable for Injuries
Here are just a few examples where a landlord's negligence has resulted in a monetary award:

• Tenant falls down a staircase due to a defective handrail.
• Tenant trips over a hole in the carpet on a common stairway not properly maintained by the landlord.
• Tenant injured and property damaged by fire resulting from an obviously defective heater or wiring.
• Tenant gets sick from pesticide sprayed in common areas and on exterior walls without notice.
• Tenant's child is scalded by water from a water heater with a broken thermostat.
• Tenant slips and falls on a puddle of oil-slicked rainwater in the garage.
• Tenant's guest slips on ultraslick floor wax applied by the landlord's cleaning service.
• Tenant receives electrical burns when attempting to insert a stove's damaged plug into a wall outlet.
• Tenant slips and falls on wet grass cuttings left on a common walkway.

How to Prevent Injuries

Preventing an injury is a lot better than arguing about whose fault it was. In the following sections, we suggest ways to protect yourself from lawsuits and hefty insurance settlements—and make your tenants' lives safer and happier at the same time.

How to eliminate some risks—such as mopping up a spilled bucket of water—is obvious. But not every problem has a straightforward solution.

You shouldn't hesitate to ask for advice from people who are experienced in identifying and dealing with risks. One excellent resource is your insurance company's safety inspector; your insurance agent can tell you whom to contact. Another good approach is to ask your tenants to notify you as soon as possible about all safety risks, no matter how small.

Maintain the Property

Our first piece of advice might sound obvious, but, like a lot of obvious steps, it's often overlooked. Create a regular inspection schedule, and stick to it. Look for structural problems, environmental health hazards, and any other dangerous or unsafe conditions that could contribute to an injury. For example, you can head off many trip-and-fall accidents simply by providing good lighting in hallways, parking garages, and other common areas. Keep good records on the dates and details of your property inspections and any follow-up repairs done.

If you're routinely at the rental property, keep an eye out for any dangerous conditions while you go about your day-to-day business. Document any problems you encounter and fix them promptly. You can also ask your tenants, manager, employees, and insurance company to help you spot problems.

Whenever you become aware of a repair problem with an obvious potential for injury, put it on the top of your to-do list. If a dangerous condition poses a high risk of injury or damage, call in a specialist. For example, consult a structural engineer if large cracks are suddenly appearing in a concrete walkway—not your general handyperson.

Comply With Building Codes

Local and state health, safety, and building codes often establish very specific mandates for properties. For example, electrical codes specify how much of a load you may place on individual circuits; building codes tell you how sturdy your deck piers must be. Once you establish basic compliance with these rules, you can't just forget about them: Stay on top of changes to the laws by reviewing them at least once a year.

As long as your property and maintenance procedures are up to code, you should be able to prevail in any lawsuit or complaint based on your alleged violation of a statute.

Warn of Dangers You Can't Fix

Occasionally you'll encounter dangers that you cannot control and eliminate, such as environmental hazards. In these instances, you should educate your tenants about the dangers and their need to follow safety procedures.

EXAMPLE: Towering eucalyptus trees lined the side and back yards of the duplex Jack and Edna owned. During windy weather, the trees often dropped big strips of bark and branches. Realizing this, Jack and Edna warned their tenants to steer clear of the trees during windy spells. As an extra precaution, they included a written warning to this effect in a move-in letter to new tenants and posted signs near the trees.

Similarly, you have a duty to warn tenants and others about naturally occurring dangers (such as loose soil) and man-made dangers (like low doorways or steep stairs) that might not be obvious to tenants or their guests, but which you know about (or should have discovered through proper maintenance procedures). Disclose hidden defects such as these in your lease or rental agreement (see Clause 22 of the agreements in Chapter 2), or include a description of the hazards in a move-in letter (Chapter 7). By informing tenants in writing of the hidden defect, no one will ever be able to successfully claim you didn't provide warning.

Whenever feasible and appropriate, post a visual warning of some sort near the hazard. Keep in mind that some tenants or visitors might not be able to read (for example, children) or understand English. Some possible visual warnings other than a written sign include red flags, construction cones, yellow caution tape, or a skull-and-crossbones symbol. Document your visual warning by taking a picture and saving it in your files.

Solicit and Respond Quickly to Tenants' Safety Complaints

As explained in "Responding to Tenant Complaints" in Chapter 9, make sure tenants know that you are always receptive to concerns regarding building safety and repairs.

When you receive a complaint, consider the potential risk posed by the condition as well as what it will take to fix it, and respond appropriately. For example, a sticky front door lock that still works might merit having the locksmith come the next day; a completely broken lock poses a more serious safety concern and warrants a call to the 24-hour locksmith.

Back up your policy of soliciting and promptly responding to tenants' concerns with a good record-keeping system. Doing so will help you should you be challenged later. For example, suppose a tenant notifies you of a loose step. As soon as possible, you should post warning tape and signs, ask the tenant to use another entrance, and arrange to have it repaired soon. Recording the measures you took to remedy the issue in your records, as well as notes about or copies of your response to the tenant will show that you did all that was reasonably necessary. If the tenant disregards your advice and uses the stairs anyway, you'll be able to show that you acted prudently and should not be responsible for any injuries that he suffered as a result of his decisions.

Install and Maintain Basic Safety Features

Many state and city laws require certain safety features, such as smoke and carbon monoxide detectors. Even if you live in an area without many safety laws, you...