Property maintenance, showing duty of ordinary careTo establish the level of duty owed, the California courts require two items:

1. Reasonable management of the property where the slip and fall injury occurred;

2. The foreseeability of the injury;

Most jurisdictions require that the landowner use the level of care of an ordinarily prudent adult to prevent an unreasonable risk of harm. Under this legal rule, the custom and practice of industry is often used to establish ordinary care. As an example, abrasive admixtures added to exterior paint on walkway surfaces are ordinarily used in apartment complexes to reduce the risk of injury on wet walkway surfaces. A strict interpretation of the above rule would require the finding of negligence (at legal fault) unless abrasive substances or materials were used by the owner on the exterior walkway surfaces exposed to rainfall or other potential sources of moisture. A survey of similar buildings or structures in the area of the slip and fall injury will show if other property owners have taken similar precautions to reduce or eliminate the hazards found in the subject injury case. This is important, especially on slippery surface cases due to rain.

Another interesting point is the totality of circumstances to argue or
determine ordinary care
. Imagine two different locations: the first location is a rural store with wood plank porches and rustic railings, and the second location is a convalescent home that caters to the rehabilitation and care of the disabled and elderly. The demographics and conditions of use and the amount of traffic would all have to be considered. Many, if not most, of the people using the walkways of the convalescent home have a greater difficulty in maintaining their balance or walking gait in the event of an accidental slip. However, patrons or customers of the rural country store would consist of a more balanced cross-section of the general population. To this end, the owners of the convalescent home would likely be required to take reasonable precautions to do their best to eliminate all potential or possible slip and fall hazards, and not just those that create an unreasonable risk of harm. That would be the difference, and that would be how a court would look at the difference.

What about existing harms or dangers? Most safety engineers will state that
any existing risk of harm that could have been reasonably prevented is an unreasonable risk of harm in a slip and fall injury case. There are, however, practical limits to this general rule of thumb. Many defects may present a low level of risk, but the cost and practicability of removal are unwarranted from an economic and risk-benefit analysis. A majority of states follow the "
trivial defect doctrine" which provides a defense argument to public (government) entities for slight or minor defects in slip and fall or general injury (liability) cases.
Mark Blane
Connect with me
San Diego Personal Injury Lawyer | California Car Accident Attorney
Post A Comment