Some people perceive our courts as a monolithic system of black-letter rules of procedure and laws where justice is meted. Nothing could be further from the truth. In personal injury law, there is a constant tugging and pushing between those who defend money and those who are seeking compensation for injuries. One of the greatest battlegrounds is “duty.” There is constant conflict between those who understand there is a duty of reasonable conduct to others; while some believe they are not “free” unless they owe nothing to others.
For instance, in a premises liability case in San Diego, a window sill was nearly a foot deep, inviting people to sit on it and enjoy the view of the beach and the ocean. The window was on the second story and the ground just outside the window was a concrete walkway and parking lot. There were no guards on the window screens. It was a common occurrence that people would sit on the window sills and lean against the screens. A child stood on the window sill, lost his balance and fell against the screen. The screen was not designed or built to keep children in; it was designed to keep insects out. When the child foreseeably landed on the concrete below, he suffered serious head injuries.
The owner of the building admitted that he knew people sat on the window sills and thus the screens had to be repaired constantly. The owner countered, however, that he was not responsible to supervise the child (or anyone for that matter) and he argued he should not be held liable for injuries the child sustained by falling out the window. The owner argued that he had no duty to make his property safe, which he could have done by securing a safety bar across the open window.
The trial judge agreed with the owner and ruled the owner had no duty to child invitees. The trial judge dismissed the child’s case. Luckily, the child had an intrepid plaintiff’s personal injury attorney who took the case up on appeal. The appellate court had little problem ruling that whether the property was an unreasonably dangerous condition was a question of fact for a jury to decide. The question was not a question of law where a judge could automatically state the owner owed no duty to the child. Our law, from the English common law, has continuously been that people must conform their behavior to that of a reasonable person. Some of our judges seem to have forgotten that rule learned in first year torts. A jury must make the decision what is reasonable or not.
As long as owners feel they owe no duty of due care to people foreseeably on their property, they will make motions like the owner did in San Diego. Hopefully, the courts will apply the correct rules and injured victims will be able to obtain compensation for their harms and losses.
