My response:
The term "premises liability" refers to the liability of certain persons for injuries and damages to others arising from the ownership or possession of real property. In California, premises liability is based on general principles of negligence and is controlled both by statute and case law. [Rowland v Christian (1968) 69 Cal 2d 108, 70 Cal Rptr 97, 443 P2d 561, 32 ALR3d 496; see also Morales v Fansler (1989, 5th Dist) 209 Cal App 3d 1581, 258 Cal Rptr 96 (applying the Rowland factors)]
As in any other negligence action, the injured person must establish (1) the existence of a duty on the part of the defendant to use due care, (2) a breach of this legal duty, and (3) that the breach was the proximate or legal cause of the resulting injury. [United States Liability Ins. Co. v Haidinger-Hayes, Inc. (1970) 1 Cal 3d 586, 83 Cal Rptr 418, 463 P2d 770; for detailed discussion of principles of negligence, see TORTS Negligence Ch 1; see Srithong v. Total Inv. Co. (1994, 2nd Dist.) 23 Cal.App.4th 721, 28 Cal.Rptr.2d 672 (landlord cannot escape liability for failure to maintain safe condition by delegating duty to independent contractor).]
The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness, otherwise known as "Strict Liability".
A person is lawfully on the private property of the dog’s owner when he or she is performing any duty imposed by law or postal regulations, or when he or she is on the property by the express or implied invitation of the owner. [See CC §3342(a)]
Civil Code §3342, also known as the Dog Bite Statute, imposes strict liability on dog owners. [Nelson v Hall (1985, 3rd Dist) 165 Cal App 3d 709, 211 Cal Rptr 668] This statutory strict liability changed the common law "one bite" rule but did not make the keeping of pet dogs an activity entirely accompanied with strict liability. A dog keeper’s liability for claims other than bites remains determined by general common law tort principles. [Nava v McMillan (1981, 2nd Dist) 123 Cal App 3d 262, 176 Cal Rptr 473]
The statute’s effect was to merely change the proof required under the preexisting common law action by deleting the requirement that the plaintiff must allege and prove that the dog was vicious. [Pritchard v Sharp (1974, 1st Dist) 41 Cal App 3d 530, 116 Cal Rptr 9]
The statute applies only to plaintiffs who were bitten when in a public place or lawfully in a private place. [CC §3342(a)] Thus, an uninvited trespasser may not recover under the statute. [Bauman v Beaujean (1966, 5th Dist) 244 Cal App 2d 384, 53 Cal Rptr 55 (three and one-half year old child who wandered into neighbor’s backyard was technical or unintentional trespasser)] A trespasser may recover under the common law rule of liability for vicious animals if the dog owner should have anticipated the attack. [Radoff v Hunter (1958, 2nd Dist) 158 Cal App 2d 770, 323 P2d 202.
The statutory strict liability of CC §3342 does not preclude all common law defenses. In the proper case, a dog owner may raise the defense of assumption of risk or wilfully invited injury. If a person knows and appreciates the danger involved in encountering an animal such as a hostile and barking dog, and voluntarily accepts the risk by exposing himself or herself to the hazard, the plaintiff may not recover under the statute. [Gomes v Byrne (1959) 51 Cal 2d 418, 333 P2d 754]
Before liability may be imposed on a landlord by an injured tenant or third party, the injured party must show that the landlord had the ability to cure the dangerous condition. [See Leakes v Shamoun (1986, 4th Dist) 187 Cal App 3d 772, 232 Cal Rptr 171; see Butcher v. Gay (1994, 5th Dist.) 29 Cal.App.4th 388, 34 Cal.Rptr.2d 771.
A landlord has a duty to inspect for dangerous conditions at the time the rental premises are let [Becker v IRM Corp. (1985) 38 Cal 3d 454, 213 Cal Rptr 213, 698 P2d 116, 48 ALR4th 601 (overruled by Peterson v. Superior Court (1995) 10 Cal.4th 1185, 43 Cal.Rptr.2d 836, 899 P.2d 905 to the extent it applied the doctrine of strict products liability to a residential landlord that is not a part of the manufacturing or marketing enterprise of the allegedly defective product that caused the injury in question) and (overruling recognized by McCarthy v. Martinson (1996) 51 Cal.App.4th 632, 59 Cal.Rptr.2d 149 (court applied the Peterson decision retroactively)], and on renewal of the lease [Mora v Baker Commodities, Inc. (1989, 2nd Dist) 210 Cal App 3d 771, 258 Cal Rptr 669].
The landlord’s responsibility to inspect, however, is limited. [Mora v Baker Commodities, Inc. (1989, 2nd Dist) 210 Cal App 3d 771, 258 Cal Rptr 669] The duty to inspect charges the landlord only with those matters that would have been disclosed by reasonable inspection. [Mora v Baker Commodities, Inc. (1989, 2nd Dist) 210 Cal App 3d 771, 258 Cal Rptr 669 (quoting Becker v IRM Corp. (1985) 38 Cal 3d 454, 213 Cal Rptr 213, 698 P2d 116, 48 ALR4th 601)]
A landlord is not liable for injuries to a tenant caused by a condition on the premises that arises after the tenant has taken possession. [Brantley v. Pisaro (1996, 5th Dist.) 42 Cal.App.4th 1591, 50 Cal.Rptr.2d 431 (tenant’s use of stairway without incident and landlord’s lack of notice not enough to justify summary judgment in favor of landlord with respect to deficiency that existed at time lease commenced)]
The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potentially serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. Contrariwise, if such an inspection is not warranted, the landlord has no obligation to inspect. [Mora v Baker Commodities, Inc. (1989, 2nd Dist) 210 Cal App 3d 771, 258 Cal Rptr 669]
A commercial landlord’s duty of care includes the duty to inspect the premises for the purpose of discovering a dangerous animal. This duty does not create strict liability on the part of the landlord. [Portillo v. Aiassa (1994, 6th Dist.) 27 Cal.App.4th 1128, 32 Cal.Rptr.2d 755 (landlord of liquor store had duty to make reasonable inspection of premises on renewal of lease to discover dangerous condition (vicious dog) and to see that premises were safe for purpose intended)]
However, where a commercial landlord has a duty to exercise reasonable care in the inspection of premises for dangerous conditions, the lack of awareness of the dangerous condition does not generally preclude liability. Though liability might easily be found where the landowner has actual knowledge of the dangerous condition, the landowner’s lack of knowledge of the dangerous condition is not a defense. He or she has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. If, by the exercise of reasonable care, the landowner would have discovered the dangerous condition, he or she is liable. [Lopez v. Superior Court (1996, 2nd Dist.) 45 Cal.App.4th 705, 52 Cal.Rptr.2d 821]
A landlord who does not have actual knowledge of the vicious nature of a dog cannot be held liable when the dog attacks a third person. The knowledge requirement can be satisfied by circumstantial evidence. The landlord’s liability also depends on whether the behavior was foreseeable. The landlord’s liability stems from his control of the property, from which he had the ability to evict the tenant for having the dog on the premises. [Donchin v. Guerrero (1995, 2nd Dist.) 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192 (triable issue of fact as to whether landlord’s failure to control his property was a cause of victim’s injuries some four blocks away from premises)]
There are two types of assumption of the risk, whether in a landlord-tenant context or otherwise; these are primary and secondary assumption of risk. Primary assumption of the risk occurs when, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury. Primary assumption of the risk operates as a complete bar to the plaintiff’s recovery. Secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly encounters the risk of injury caused by the defendant’s breach of that duty. Secondary assumption of the risk is merged into the comparative fault scheme, and the trier of fact may apportion the loss in relation to the responsibility of the parties. [Yancey v. Superior Court (1994, 5th Dist.) 28 Cal.App.4th 558, 33 Cal.Rptr.2d 777 (careless conduct of one throwing discus, without first ascertaining that target area is clear, is not inherent risk of sport; discus thrower has duty to take commonsense precautions)]
IAAL
