It can be tempting, when one considers the subject of premises liability, to think that the duty of care that extends to others on real property belongs to the owner of that property. But while it is true that a property owner does have a duty to maintain property in a reasonably safe condition, a closer examination of how California courts have interpreted premises liability law shows that property owners are not the only ones who owe such a duty.
Take, for example, a situation in which a business operates next to a strip of land owned by the local municipality, but for practical purposes exercises control over that strip. If a passerby on the strip steps into an uncovered water meter hole in the strip, can he sue the adjacent property owner based on a premises liability theory? Yes, he can.
According to the California Supreme Court, the proper test is not whether the defendant in a premises liability lawsuit has title to the land where the injury took place, but rather whether he or she exercised “possession and control” over it. If the plaintiff can show this to be the case, then an issue of fact exists for the jury to decide in terms of whether the person or business that exercises such possession and control had a duty to erect a barrier against an unreasonably unsafe condition or to warn persons entering the property of such danger.
A similar example would be if a possessor of property knows that a live power line passing over the land has fallen down on it. If so, then even though the person in possession and control of the property does not own the power line, he still has a duty to either warn others on the line of the danger, or to place barriers against physical contact with the line.
Any time that you may be injured on the property of someone else, you should consult with a personal injury attorney to help establish who was in possession and control over the location where the harm took place. Even if the person exercising such possession and control was not the actual owner of the land, you may still have a workable cause of action for premises liability.