Injured burglar, seeking lawyer…

Colin McCarthy
Colin McCarthy | 5 min. read

Published on May 17, 2011

America is the greatest country in the world. There. I said it. Here’s why. There is an urban legend, if you will, that tells of the story of a burglar who sued and recovered after he hurt himself trying to steal from a homeowner. The story goes something like this. The would be burglar is trespassing on the responsible citizen’s property. Since the responsible citizen had the good sense to lock his doors when he left, the would be burglar had to find other means to enter the property. So he went up on the roof and over to a skylight. There was a known defect in the skylight – the property owner knew it was not installed correctly. The would be burglar put some weight on the skylight and (instead of supporting him!) it gave way and he fell right through into the house and onto the brand new kitchen table. He broke several bones and, after he was released from jail, he sued the property owner for premises liability. And won!

Or so they say. Because I’m that kind of guy, I’m going to take the outrageous position of defending the result that is proffered in this urban legend. Wait… what?!? You are going to defend the burglar? No – that’s not what I said. I said I’m going to defend the result that is put forth as true in this legend. I don’t know if the story is true, but I’m prepared to tell you, in the context of California law, how such a result could, possibly, be reached. Not only will I do it, but I will be patriotic about it.

The first thing you have to do to understand how such a result could be reached is to get out of your head distinctions regarding the status of the injured person. California dropped such distinctions way back in the 1960s. In other words, I want you to ignore the fact that this person was a burglar. (How do we know he was a burglar, anyways? Did someone say that? Did he say that? Did he have an empty rucksack with him with a “$” on it and schematics of the house and location of the safe with him?) For purposes of his injury recovery, that does not matter – at least not much. It makes no difference with respect to the recovery to the injured person whether he was invited to the property for social purposes (licensee), whether he was on the premises to buy something (invitee), or whether he was a thief (a trespasser).

Why? There are two main reasons for it. First, in California, although the actions of the defendant are accounted for, the goal of personal injury recovery is to attempt to “make the plaintiff whole.” What this means is that all things being equal, what is important about a personal injury action is that the injured party be put as close as possible back to the position she was before the injury. This is why you hear about such victims seeking a “deep pocket.” There needs to be someone to pay for the injury. If it just so happens that the deep pocket is not as responsible as the small pocketed person, having the injured person recover is slightly more important than attaching responsibility for the harm on the party primarily responsible.

The second reason is that in imposing the duty on the landlord to maintain a safe premises, it should not matter what category we place the injured person in when she is hurt on your property. In California the general rule is that everyone “is responsible, …, for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.” California Code of Civil Procedure, §1714. There is nothing in that rule about being a trespasser, an invitee, or a licensee. Drawing distinctions based on the class of person injured isn’t necessarily consistent with this general rule, and in fact, doing so bears the vestiges of those very English and un-American activities of imperialism and feudal rule. These distinctions “were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism.” Rowland v. Christian, 69 Cal. 2d 108, 116 (1968) (citations and internal quotes omitted). Feudalism! Well, I’m American and I don’t like that. In other words, this is America and we do not need to put people in boxes or categories in order to make sure they don’t get hurt as a result of another’s negligence.

Now, this is not to say that the legislature is prohibited from making laws which might deny or limit the recovery of a burglar. California has. It limits the rights of a felon to recover “pain and suffering” damages for injuries sustained during the commission of a felony. There are also comparative negligence principles that come into play which would reduce and potentially eliminate a burglar’s recovery.

So if that urban legend took place in California, after 1968, it’s quite probable that even if he “won” on his negligence claim, he wouldn’t have recovered for his intangible “pain and suffering” and a good lawyer for the land owner would have further reduced the would be burglar’s recovery by proving to the jury that he was negligent in causing his own injuries. Now I wonder if there are any good lawyers out there . . .

This blog submission is only for purposes of disseminating information.  It does not constitute legal advice.  The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients.  No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto.  If you need legal advice, please hire licensed attorney in your state.

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Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

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