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An Exciting 2013 Awaits

Thursday, January 17

By Colin McCarthy, J.D., Robinson & Wood, San Jose, CA


I saw and liked the latest James Bond flick. I say latest and not "new" because I realize it was released last year and by now everyone is discussing Django Unchained. I will be ready to discuss that film in six months, when I have time to see it. Skyfall was good, but something about it bugged me. In discussing it with my brother and reading some reviews after the fact, it occurred to me: it wasn't any fun. It was so serious! Who wants to see a drunk, depressed James Bond? Not me. He didn't even say "Shaken, not stirred." They just showed the bartender shaking the martini.


Fellow blog persons, as we look back at 2012, I hope I avoided Skyfall syndrome. This should be fun. Even though we discussed some serious stuff, hopefully we had fun. We have pretty thoroughly discussed the types of situations that can lead to landlord liability for injuries or damages to others, and the circumstances for attaching liability. It's all about notice, control, and the opportunity to correct people. Having thoroughly flogged that horse to death, we're going to shift gears and start talking about issues to look for in defending against such actions. There are (as usual) three main areas we're going to look at. See? This is fun!


First, we'll delve into some detail about which persons or entities are the "landlord" for purposes of imposing liability. Is it the owner, the lessor, the sub-lessor, or all three? What about the person who sold me this money pit? Can the former owner be roped into this instead of me for that obvious hole-in-the-floor trip hazard? What about the vending machine operator who maintains the soda machine that tore that guy's hand off? Or the HOA? Which among these various entities will be on the hook?


Next, we will take a look at some potential laws (i.e., "statutes") which provide defense ("immunity") to such liability suits. Many states, including California, have various laws on the books which will provide the landlord defendant with a complete defense to an action wherein liability would otherwise be imposed. In other words, even if the landlord had notice, control, and an opportunity to fix, in certain circumstances the law will exonerate the defendant for public policy reasons. One such law in California provides immunity for serving booze at parties under most circumstances, so as not to mute one's inclination to have parties. (I think a certain Buildium man's birthday is coming up in February and I intend to celebrate it -- with or without him.) We'll talk about some of the more obvious ones to look for.


Finally, we will bust out the old case books to talk about some other defenses a landlord/owner can raise when sued. The common law of American jurisprudence and its origins in English law offer up a "plethora"* of other defenses that can be raised to defeat claims against a landlord/owner for actions. These are some concepts like "the firefighters rule" -- sounds exciting, doesn't it?!


That should take us through a good part of the year. Thanks for reading, and hope I don't bore you.


*Virtual high five who can name the movie in which that word was used in the following context:


"Would you say I had a plethora of birthday gifts?"


"Oh, yea, boss, yea. I would say you have a plethora of birthday gifts."


This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.


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Michael Monteiro

Buildium, LLC
Real Estate Consultant
Boston, Massachusetts


Website: http://www.buildium.com
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