Premises Liability Law
| Author | Charles E. Turnbow |
| Pages | 55-86 |
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CHAPTER 2
Premises Liability Law
§200 Introduction
§201 Common Law
§202 Modern Elimination of Categories
Case 1: Business Invitee
§203 Common Carriers
§210 Burden of Proof
§211 Dangerous Condition
§212 Duty
§212.1 Control of Premises
§212.1.1 Landlord and Tenant
§212.2 Ordinary Care
§212.3 Statutory Duty
§212.4 Americans With Disabilities Act of 1990 (ADA)
§212.5 Elder Abuse Statutes
§213 Notice
§213.1 Actual Notice
§213.2 Constructive Notice
Case 1: Box on Floor
Case 2: Dangerous Plastic
Case 3: Fallen Banana
Case 4: Hand Lotion
Case 5: Slippery Milk
§214 Breach of Duty
§215 Causation
§215.1 Injury Consistent With Hazard
§216 Damages
§216.1 Special Damages
§216.2 General Damages
§216.3 Punitive Damages
§216.4 Evaluation of Damages
§220 Plaintiff’s Status
§221 Trespassing Adults
§222 Trespassing Children
§223 Licensees
§223.1 Duty to Warn
§224 Invitees
§224.1 Knowledge of Dangerous Condition
§224.2 Special Duties
§225 Limited Immunity for Recreational Use of Land
§230 Notice
§231 Actual Notice
§232 Constructive Notice
§232.1 Defendant’s Creation of Hazardous Condition
§232.2 Frequency of Inspections
§232.3 Notice Applies to Plaintiff and Defendant
§232.4 Foreseeability
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PREMISES LIABILITY LAW
§233 Duty to Inspect for Hazards Caused by Others
§233.1 Self-Service Retail Stores
§233.2 Mode of Operation
§240 Strict Liability
§241 Landlords
§250 Plaintiff’s Negligence
§251 Contributory Negligence and Comparative Fault
§252 Assumption of Risk
§252.1 The Fireman’s Rule
Case 1: Liability and Fireman’s Rule
§260 Negligence Per Se
§261 Defense to Negligence Per Se
§262 Did Defect Cause Accident?
§270 Jury Instructions
§280 Government Tort Actions
§281 Public Duty
§281.1 Dangerous Condition
§281.2 Trivial Defect
§281.3 Liability of Abutting Property Owners
§282 Pleading and Practice
§283 [Reserved]
§284 Duty of Municipality to Comply With Federal Mandated Standards
§285 Governmental Immunity
§285.1 Discretionary Immunity
§285.2 Design Immunity
Case 1: Softball Field
§285.3 Design v. Negligence
Case 2: Outdated Campus Design
§290 Special Statutory Actions
§291 Federal Employers’ Liability Act (FELA)
§292 The Jones Act
§293 Jurisdiction and Procedural Issues
§294 Federal Employers’ Liability Act or Workers’ Compensation
§295 Respect the Process
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§200 SLIP AND FALL PRACTICE
§200 Introduction
Slip and fall accidents are not uncommon. Over three mil-
lion injury producing fall accidents occur each year result-
ing in approximately 15,000 fatalities. The second highest
accidental death rate is due to fall accidents. Only about 10
percent of these accidents result in litigation.
Most fall accidents are preventable, since the conditions
that caused the accidents are often the result of the property
owner’s negligent behavior. In applying basic negligence
issues to slip and fall cases, the appellate courts have
developed a rather substantial body of case law.
It is well beyond the scope of this book to discuss all of
the applicable premises liability law. The rulings are too
diverse in many cases to generalize. This chapter contains
case citations from a cross section of jurisdictions. You will
note that I have quoted California law somewhat more than
other jurisdictions. I have done this for two reasons: first, I
am a California lawyer; second, California is usually in the
vanguard of tort law. Premises are no exception. In most
cases, the law established in California will have a signifi-
cant impact across the country, and therefore should not be
overlooked in your analysis.
§201 Common Law
The common law rights and duties arising from slip and
fall cases traditionally focus on the owners and occupiers
of land. The rationale is that the possessor of the land is in
the best position to control the property to prevent harm
to others. While the landowner or possessor has the right
to enjoy the benefits arising from the land, it is a limited
right. The landowner has a duty to ensure that the use of
the property causes no unreasonable risk of harm to others
in the vicinity of the land or those crossing upon it. See
Jacobs v. Mutual Mortg. & Inv. Co., 6 Ohio St. 2d 92, 216
N.E.2d 49 (1966) (possession and control of the premises
creates a duty of care even though there was a question of
legal ownership of the property).
Most slip and fall cases arise from the negligent conduct
of a possessor of the land resulting in a dangerous condi-
tion and an unreasonable risk of harm to a pedestrian.
The occupier is required to exercise reasonable care with
regard to personal activities, the erection of buildings or
structures on the land, and maintaining conditions that are
dangerous to persons or property in the vicinity. The pos-
sessor is also under an affirmative duty to take reasonable
steps to inspect the premises for dangerous conditions and
to keep them in repair. However, the possessor is not the
insurer of all circumstances that may arise on the property,
nor is the possessor liable where reasonable care can be
shown. Schell v. Second Nat’l Bank, 14 Minn. 43 (1869).
Generally, the possessor is not liable for injuries proxi-
mately caused by natural conditions. However, if the
premises are altered such that the condition can no longer
be considered a natural one, the possessor will be liable for
injuries resulting from negligence.
Under the common law, the duty owed to an individual
depends upon the individual’s status. Under these rules, a
higher duty of care is owed to a business invitee than to a
trespasser. These status distinctions, which are still recog-
nized in some states, are discussed in more detail in §§220
et seq., below.
§202 Modern Elimination of Categories
The developing modern trend is to apply a reasonable
person standard when assessing breach of duty, thereby
eliminating the traditional significance of the plaintiff’s
status or class. In the landmark case of Rowland v.
Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561
(1968), the California Supreme Court held that the proper
test is to determine whether the landowner, in managing
the property, acted reasonably in view of the probability
of injury to others.
According to Rowland and in states that follow this rule,
the plaintiff’s status as a trespasser, licensee or invitee
may have some bearing on the question of liability, but the
status is not determinative. In these states, the possessor’s
duty is set by the foreseeability of injury to the pedestrian
and not by the categories in which the pedestrian might be
placed. Where the courts have not abolished the distinction
between the categories, they have expanded the class of
invitees to include nearly all but trespassers.
In Ford v. Board of County Commissioners, 879 P.2d 766,
118 N.M. 134 (1994), the New Mexico Supreme Court
established that:
[the] landowner or occupier of premises must act as a
reasonable man in maintaining his property in a rea-
sonably safe condition in view of all circumstances,
including the likelihood of injury to another, serious-
ness of injury and the burden of avoiding risk; duty of
care extends to all persons other than trespassers who
enter the property with consent, express or implied.
The status of the entrant may be considered as a factor but
will no longer be determinative. This ruling brings New
Mexico into the handful of states that have abolished the
differences between invitees and licensees, but have main-
tained limited duty for trespassers. Wood v. Camp, 284
Peterson v. Balach, 294 Minn. 161 (1972); O’Leary v.
Coenen, 251 N.W.2d 746 (N.D. 1977); Hudson v. Gaitan,
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