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– by Jodie Steinberg

ONE OF THE MANY issues facing small business owners is their potential liability for maintaining the property in front of their business and the property next to their business. This article is intended to answer a few of the basic questions business owners may have concerning their potential liability and how to avoid being sued. 

Does a business owner have a legal duty to warn pedestrians about a dangerous condition on the sidewalk or street in front of their store? 

The answer is yes. The factor courts tend to focus on for imposing liability on a business owner for dangerous conditions on their property (premises liability) centers on the issue of control, i.e. who had control over the premises where the incident occurred. Even if the city does not require a business owner to maintain the sidewalk or street in front of their property, California law does hold business owners liable for failing to warn people of dangerous conditions on sidewalks in front of their property. California law tends to do this because the degree of control over a sidewalk is much more likely to be held by a business owner, and property lines usually include sidewalks.

If you are unaware of the dangerous condition, you can still be liable for failure to warn because the test California law uses to impose liability is not whether you knew of the dangerous condition, but rather whether you should have known. Therefore, if a person could have discovered the dangerous condition through a reasonable inspection the business owner could be liable for failure to warn. Small business owners do have a legal duty to warn a customer of dangerous conditions in a public street or sidewalk adjoining their business because the business owner gains a benefit from having the customer use that sidewalk or street to enter the owner’s business. It is always better to err on the side of caution and warn your customers of dangerous conditions you are aware of, even if you believe you are not required to do so.

Are business owners responsible for maintaining the sidewalk and street in front of their property?

The answer is yes. Generally, business owners are deemed responsible through the use of and creating dangerous conditions on their property and are responsible for remedying those dangerous conditions promptly. California law has traditionally held that a business owner is not liable for an injury caused by an obvious danger or one that should have been discovered by the exercise of reasonable care by the customer. Section 12.04.020 of the Oakland Municipal Code does require business owners to repair sidewalks and streets in front of the owner’s property upon receiving notice by the city.

Also, the City of Oakland requires property owners to keep the entire width of the sidewalk in front of their property, from curb to lot line, free and clear of all grass, weeds, rubbish or other obstructions or materials regardless of the cause. Do not wait for the city to notify you because this will not be a suitable defense.

Are business owners responsible for maintaining the sidewalk and street on adjacent property?

The answer is usually no. Even in cases dealing with a business owner’s liability for dangerous conditions on sidewalks, California law states that business owners are not liable for failing to maintain a sidewalk or street next to their property because there is no legal duty to maintain property that someone does not own. However, there are exceptions to this rule, especially when the business owner creates the dangerous condition on the adjoining property or exercises control over the area. The owner may be held liable for the damages he or she has caused. But, generally, a business owner does not have a legal duty to maintain a public street or sidewalk adjoining his property.

Tips on how to protect yourself as a small business owner from being sued:

There are many ways landowners or small business owners can protect themselves from liability or being sued. Small business owners should familiarize themselves with the county and city regulations regarding property owner duties and responsibilities in maintaining property. Property owners are encouraged to obtain title reports from a title company in order to be aware of what property the possessor owns or leases, and thus, which property the owner or lessee is responsible for maintaining. Also, when in doubt, warn of dangerous conditions on adjoining property that you are aware of, perhaps by posting a sign. Lastly, it is also always a good idea to contact an attorney who will be able to advise you on the applicable laws accordingly.

Jodie Steinberg is an associate at the Oakland office of Ericksen Arbuthnot, a California civil litigation firm. She specializes in representing business owners and employers in various matters including, but not limited to, premises liability, personal injury and employment matters.

Oakland Business Review