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How Do Courts Evaluate “Duty” Under Premises Liability Law?


Sometimes, the land owner’s duty (or the duty of someone who possesses or controls real property) is established by statute. Statutes–the formal word for laws created by a legislative or administrative body–establish various duties with which persons who own, control, or possess real property must comply.

Where a statute exists, and the statute applies to the defendant in a particular case, courts will recognize the existence of the duty, and hold the defendant responsible for failing to comply. (However, it’s important to note that all of the elements of a premises liability case–duty, breach, causation, and damages–must be proven before the court will hold the defendant legally liable.)


Courts may also balance numerous other factors to determine whether or not a duty exists. This type of evaluation is based on the individual facts and circumstances of the case, and exists to allow the court to determine whether the defendant owed a duty to the plaintiff on the basis of all the relevant facts of an individual case.

Factors the court may consider include:

1. Whether or not the risk of harm o the plaintiff was reasonably foreseeable;

2. The availability and cost of insurance against the risk of harm, and whether people in the defendant’s position customarily or regularly carry such insurance;

3. The connection, if any, between the defendant’s behavior and the plaintiff’s injuries;

4. The degree of certainty that the plaintiff actually suffered injury as a result of the defendant’s conduct;

5. The public policy in favor of preventing future harm;

6. The burden on the defendant, and on the larger community, of imposing a duty in such circumstances;

7. The moral blameworthiness of the defendant’s behavior (if any)

These factors were established in a case called Rowland vs. Christian, and although courts can consider other relevant facts when analyzing the existence of a duty, these factors are the ones California courts most commonly consider. It isn’t necessary for every factor to weigh in favor of a duty in order for a duty to be imposed (or found) in a given case, nor are there a set number of factors which must weigh in favor of a duty in order to “trigger” potential liability. A court may find a duty even if only one factor favors the imposition of a duty, if that factor is significant enough in the relevant case.

Every case, and every injury is evaluated on its own merits, and based on its individual facts and circumstances. This is why it’s critically important for plaintiffs (and property owners) to obtain a personalized evaluation of all potential rights, claims, and defenses.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses) are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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