When one owns property, one may assume various duties to third parties as to the property. While “a man’s home is his castle,” it is often incumbent upon the property owner to assure the safety of those adjoining the castle or entering the castle.

California will impose liability on property owners who allow unsafe conditions to exist on their property that endanger others. Despite news headlines, the courts do not normally impose such conditions to protect burglars or trespassers unless the owner of property has allowed dangerous conditions to exist without warning to others or should have known that trespass is common. (A typical example: an owner keeps dangerous chemicals without fencing next to a school yard…that is going to impose liability if a child is harmed even if the child is trespassing, etc.)

This article shall discuss the basic law that is applied to dangerous conditions on property in California.


The Basic Law:

The property owner is liable for dangerous conditions that the owner knew of and did not correct or did not adequately warn invitees about.

Jury instructions are the law read to the jury by the judge prior to their deliberations and standard jury instructions apply in unsafe condition cases. The usual jury instruction that applies here succinctly states the law in California.  Liability will apply if…

1003. Unsafe Conditions.  [Name of defendant] was negligent in the use or maintenance of the property if: 1.A condition on the property created an unreasonable risk of harm;

2. [Name of defendant] knew or, through the exercise of reasonable care, should have known about it; and

3. [Name of defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.

Cases over the years have delineated various interpretations of what constitutes that negligence.

The jury instruction was updated in 2003 and 2007 to provide for reading, in conjunction the following instructions related to knowledge of the owner of the property.

New September 2003; Revised April 2007, October 2008 Directions for Use Read this instruction with CACI No. 1000, Premises Liability—Essential Factual Elements, in a premises liability case involving an unsafe condition on property. If there is an issue as to the owner’s constructive knowledge of the condition (element 2), also give CACI No. 1011, Constructive Notice Regarding Dangerous Conditions on Property. Sources and Authority• “Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.”

Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.” (Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70Cal.Rptr. 97, 443 P.2d 561].)• “ ‘[T]he proprietor of a store who knows of, or by the exercise of reasonable care could discover, an artificial condition upon his premises which he should foresee exposes his business visitors to an unreasonable risk, and who has no basis for believing that they will discover the condition or realize the risk involved, is under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm. . . .’ [Plaintiff] was entitled to have the jury so instructed.”(Williams v. Carl Karcher Enters., Inc. (1986) 182 Cal.App.3d 479, 488 [227Cal.Rptr. 465], internal citations omitted, disapproved on other grounds in Soule5860010 v. GM Corp. (1994) 8 Cal.4th 548, 574, 580 [34 Cal.Rptr.2d 607, 882 P.2d298].)•

Note that the owner must have actual or constructive knowledge of the dangerous condition before his failure to warn becomes actionable. “Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a]defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. . . .” ’ ” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [114Cal.Rptr.2d 470, 36 P.3d 11], internal citation omitted.)

“Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him. Where the dangerous condition is brought about by natural wear and tear, or third persons, or acts of God or by other causes which are not due to the negligence of the owner, or his employees, then to impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d798, 806 [117 P.2d 841], internal citation omitted.)

“Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed. In the ordinary slip-and-fall case, . . . the cause of the dangerous condition is not necessarily linked to an employee. Consequently, there is no issue of respondeat superior. Where, however, ‘the evidence is such that a reasonable inference can be drawn that the condition was created by employees of the [defendant], then[the defendant] is charged with notice of the dangerous condition.’ ” (Getchell v.Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [136 Cal.Rptr.3d 641],internal citation omitted.) “[U]nder current California law, a store owner’s choice of a particular ‘mode of operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the owner had knowledge of the dangerous condition that caused the accident. Moreover, it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries, i.e., they would be insurers of the safety of their patrons.


Practical Concerns:

There is a great deal of common sense applied by the courts here. If one knows of a dangerous condition on the property, remedy it or, if impossible or impractical to remedy, warn invitees of the danger is a clear and obvious way.  (Invitees are those who you allow on the property willingly.)

This normally applies to invitees, such as customers or guests and not to trespassers but even trespassers have been protected by this doctrine under certain circumstances, such as children or people unaware that they were trespassing (short cuts to a public park, etc.)  The owner who decides to ignore the danger to trespassers is simply looking for trouble since the same safeguards…remedy or warn…can easily be applied to both groups and provide protection from both groups.

Of course, booby traps and the like to discourage trespass or criminal activity is actionable in and of itself. While emotionally satisfying to an owner “protecting his castle,” the fact is that we do not execute or maim those accused of property crime and the individual citizen who chooses to do so puts him or herself beyond the pale of the law.

A “survivalist” known to this writer, who was actually a kind and good man out of the context of his rural land, was sentenced to five years in prison when what he thought (wrongly) was a small charged warning  land mind (with most of the powder removed) actually blew off the foot of a child entering his land to explore. As the judge told him, owning land does not make you judge and jury; it merely makes you a land owner.

Keeping the property safe is a duty imposed upon all of us owning property.