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NOTICE: Each article listed on this page is an original written by Rolando Pasquali; many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. Since the law constantly changes, some or all of the information in these articles might be out of date. Even a small difference in facts can change how the law applies to any situation. No information in any article or on this website constitutes legal advice. Neither these articles nor anything on this website creates an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area. To read an article, click on its title. Client testimonials or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. This website is from an attorney licensed to practice law in California.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dangerous Property

 

Tenants have rights extending far beyond how much they pay in rent, or even whether or not they can be evicted. Tenants, and all users of commercial property, have the right to be safe from harm. Unfortunately, one of their strongest safeguards in insuring this right was slashed back a few years ago. The right to be safe was insured by the way the law used to be applied. It’s roots were founded in flour, and the barrel from which the flour came.

The Doctrine of “Res Ipsa Loquitur”

This principle of law basically says that the happening of the event “speaks for itself.” When the instrumentality which causes injury to someone is within the exclusive control of someone else, and something happens which wouldn’t ordinarily occur without someone being negligent, then the law creates a presumption that the person who controlled the object was the negligent person.

Having embarked upon a new millennium, its instructive to look back; not upon the 20th century, but to the 19th. The case which gave birth to “Res Ipsa Loquitur” happened in England.  As a pedestrian walked down the street, a barrel of flower came rolling out of a window, hitting and injuring him. Flying barrels are kind of like flying elephants. They just don’t “happen” unless Disney draws them, or in the case of barrels, unless someone was careless. Since the shop had “exclusive” control of both their property and the barrel, the law presumed that the warehouse owner was somehow negligent. In the matter of the London & St. Katherine Docks Company, Britain’s then Chief Justice Erle wrote: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.”

While the warehouse would be allowed to present evidence that they weren’t careless, the injured pedestrian wouldn’t need to present further evidence of carelessness unless the shop presented evidence that they weren’t responsible for the event. The only issues left were the nature and extent of injury, disability, and the amount of damages to be awarded.

Eventually, California courts applied these principles to injuries sustained by persons while on the commercial property of others. As in the case of English warehouses, California ’s laws began to focus on the mechanism causing injury. The law simply assumed that the person responsible for maintaining the property safe was also responsible for injuries caused to innocent bystanders, including tenants.

Commercial Real Estate

Since the mid 1980's California had pioneered dramatic changes in the law of leased real estate. Hotels, and even residential landlords became “strictly” responsible for injuries occurring to tenants when they were hurt by hidden or unknown dangers on the property. The court focused on latent defects, those which cannot be readily ascertained. Instead of “whose fault was it?” the question simply became, as in the case of other “strict liability matters,” how much do they owe?

Every leased piece of real estate, the court ruled, carries an implied assurance of safety. The tenant who leases housing for a limited period of time is in no position to look behind walls, check electrical wiring, or otherwise inspect for unseen defects.

California's highest court viewed the operation of commercial rental or hotel property as an “enterprise,” and the associated costs of protecting occupants as being simply another cost of that enterprise. Thus, the court extended to commercial property owners the same treatment it had been giving to product makers since the days of the “Cold War.”

No more! wrote the California ’s Supreme Court “of the 90's.” Now, the injured person must prove “fault” under traditional negligence theories. As such, the person who slipped in a shower and was badly disfigured by an non-tempered glass wall must show, for practical purposes, that the landlord knew that the glass was dangerous and did nothing about it.

Similarly, the Palm Springs hotel guest who slipped in a bathtub, striking her head and sustaining catastrophic neurological injuries had no case against the hotel. The injured plaintiff was stuck, even though the bathtub was “extremely slick and slippery” and had no grab rails, rubber mats, or even anti-skid surfaces applied to the tub’s bottom.

While the injured party might also sue the shower or bathtub manufacturer, many such injuries occur in buildings of substantial age. No provision was made for those fabricators who, a quarter century earlier, had simply gone out of business.

What You Can Do

The current California Supreme Court hasn’t left you out in the cold, but they’re not making things easy. You can still file suit and prevail against the property owner if you can establish fault. As to those products that injure you, you’re in much better shape, as long as the manufacturer or seller is still around. In the meantime, watch out for those flying barrels.

-by Rolando Pasquali

 

 

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