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Property Law May Add Insult to Injury

May 16, 1985|DON G. CAMPBELL | Times Staff Writer

For the homeowner--or the owner of any real estate--there's the nagging and recurring fear: A guest slips on a throw rug at the top of your stairs, does a header all the way down and ends up in a wheelchair for the rest of his life.

The typical "all-risk" homeowners' policy (HO-3) normally covers this sort of liability, according to the Insurance Information Institute, up to only about $100,000, unfortunately--far short of the mark in reimbursing a person for lifelong disability.

But in California, the risk to the property owner in a case like this goes far beyond the physical injuries and loss of income suffered by a guest. The same sort of financial nightmare can descend on the property owner even if the injured party is neither an invited guest nor an innocent trespasser simply wandering off-course, but is on the property for the purposes of committing a felony.

Hazard Not Posted

. . . A youth steals a motorcycle in San Benito County, goes joy riding across a farmer's field, hits a furrow and is thrown from the bike, ending up with a permanent disability. The farmer's insurance company settles for $500,000 on the youth's complaint that the hazard wasn't posted.

. . . A homeowner awakens in the middle of the night, emerges from his bedroom and finds a prowler at the top of his stairs with one of the homeowner's TV sets in his arms. The startled burglar starts to flee, steps on a skateboard at the top of the stairs and crashes to the bottom and gets a permanent disability. Because he was later questioned without benefit of legal counsel, and because the TV set--for some reason--yielded no fingerprints, the criminal case against him was dropped. Again: a six-figure settlement because of the homeowner's negligence in leaving the skateboard in a dangerous place.

. . . In Los Angeles County, a school is found negligent and financially responsible for injuries suffered by a student because the school permitted him to be truant and the student was struck by a car during that truancy.

But the "classic" case that has spurred efforts in the state Legislature to get property owners off this unpleasant hook was another one involving a school district.

As Assemblyman Alister McAlister (D-Milpitas), author of AB 200, put it: "In one case, a burglar fell through a skylight while trying to break into a school and was paralyzed in the fall. He sued for $5 million, charging that the school failed to warn him that the skylight was unsafe. He managed to extort from the school district $260,000 in an out-of-court settlement plus $1,200 a month for life."

Now in committee, McAlister's bill would free property owners of liability to any person for any injury occurring upon the property during or after the commission or attempted commission of a specified felony by the injured person.

What muddied the legal waters here, according to Dave Simmons of the Insurance Information Institute, was a 1968 California Supreme Court ruling on the important distinctions among the words trespasser , licensee and invitee .

Until then, McAlister said, California followed the common-law rule that a property owner's liability for injuries occurring on his property depended upon the legal status of the injured party as a trespasser (in the obvious meaning of the word), an invitee (a business visitor) or a licensee (a social guest). And common law held that he owed a duty of care to his business guests (invitees), but not to social guests (licensees) or to trespassers.

Repudiating Common Law

But in Rowland vs. Christian in 1968, McAlister added, the California Supreme Court repudiated the common law in a case involving an injury to a social guest caused by a defective condition on a piece of property. The court eliminated the distinction not only for social guests but even for trespassers. The result is that a possessor of land owes a duty of care and is liable not only to business visitors and social guests but even to trespassers.

Whether the court actually intended to lump felonious trespassers into this catch-all liability category is immaterial. The end result was to open the door of litigation for every burglar and footpad who gets hurt on the job because of a real or imagined defect in the property he is invading.

Several previous efforts by McAlister to exclude the felonious trespasser--notably a measure in 1979 that passed overwhelmingly in both the Assembly and the Senate only to be vetoed by Gov. Edmund G. Brown Jr.--have been impaled on a variety of fears--again real or imagined--on the part of their opponents. Organized labor has misgivings that the bill would favor management over labor and farmers over farm laborers; the California Trial Lawyers Assn. fears that it would encourage landowners to commit violent attacks on trespassers, and the American Civil Liberties Union has misgivings that such immunity from liability shouldn't be given to property owners unless the trespasser is actually convicted of a felony.

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