What constitutes premises liability

Colin McCarthy
Get the latest industry insights.

Published on August 23, 2011

So now that I’ve enticed you with some interesting stories about people getting murdered and burglars suing property owners, I thought it would be a good time to go over the brass tacks of just what constitutes a premises liability cause of action.  When can a resident sue? Or saying the same thing differently as us lawyers like to do: When can the landlord be sued?  When there is a lawsuit, what does the plaintiff (the party suing) have to prove to recover?  What does the landlord have to disprove to defend against such suits?

Buildium property management software

We’ll discuss some of these questions in the next couple of posts.  I hope this is a refreshing dose of some basic legal principles after the sensationalism and base pandering I’ve employed with a few of my recent posts.

In California, a tenant will be able to successfully sue the landlord for negligently caused harm sustained on the property if she proves four different facts.  If you are clever and were paying attention you’d know that I just told you the four facts in the proceeding sentence.  There are some variations but in essence, the tenant plaintiff will have to prove:

  1. That the defendant owned or leased or occupied or controlled the property on which she was harmed;
  2. That the defendant “was negligent” with respect to the property’s use or how it was maintained;
  3. That the plaintiff sustained an injury or property damage; and
  4. That the “defendant’s negligence” was a legal cause of that injury or property damage.

If the plaintiff proves all four, she wins.  The plaintiff does not have to be a tenant to sue.  Anyone who is injured on the property – with certain exceptions not applicable in a residential setting – can sue the owner.  So if the tenant has a guest over, and the guest injures himself on a broken faucet, the guest can sue.  He can sue the tenant (see #1 above “leased” or “occupied”), and/or the landlord (#1 above “owned” and “controlled”).

(In fact, a seminal* case in California regarding duty – when to impose one on a defendant to make him “negligent”*- involved premises liability and the broken faucet circumstances I referenced above.  We’ll discuss that case in the next entry).

After the plaintiff figures out who leased/occupied/owned and/or controlled the premises on which she was injured, she next has to show “negligence.”*  That basically means showing that the defendant was not being careful with respect to the property.  We’ll go into some examples of that in later posts.

Just because a lessor/occupier/owner/controller was negligent does not mean that the plaintiff prevails.  The plaintiff still has to show that the negligence contributed to her injuries such as to impose legal liability for the same.  One can be negligent, but if does not harm anyone, there is no liability.

Get it? We’ll try this for a few more posts and if it gets boring we’ll get back to sensationalism and pandering.

*Caution: lawyer word that normal people don’t use.

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 a licensed attorney in your state.

Read more on Uncategorized
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.

Trending Stories For You
Accounting & Taxes 10 property management bookkeeping basics
Since one of the core responsibilities of a property manager is to manage an owner's assets, income, and expenses, you’re constantly dealing with accounting whether…
Laurie Mega
| 7 min. read
Accounting & Taxes How does a 1031 exchange work? What property managers should know
More and more property managers are finding their clientele shifting from accidental landlords to strategically minded rental real estate investors. And they're relying on the…
Amanda Maher
| 5 min. read
Maintenance & Improvements Multi-family winterization checklist: 18 steps to take ASAP
For most of the country, winter is at our doorstep—and as with winters past, it could bring billions of dollars in property damage nationwide. Between…
Jason Van Steenwyk
| 7 min. read

Be a more productive
property manager