Considerations when a property owner owes a duty of care to warn against an “open and obvious risk.”

By Eric Ganci

Montes v. Young Men’s Christian Association of Glendale

Per California law, when you own a property and know or should know of a dangerous condition, you may have a duty to warn of this condition. This 8/3/22 decision Montes v. Young Men’s Christian Association of Glendale (cited as 2022 WL 3053305) gives factors and further guidance.

First, the general law:

There is much to unpack with dangerous conditions on a property. For purposes here, I’ll just focus on foreseeability with a condition that is “open and obvious” and whether a landowner owes a duty to protect.

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious.” “‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’” “In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.’”

Ok, understood.

Montes also focuses on the case Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) (cited as 14 Cal.App.5th 438). In Jacobs, a person was viewing a property for sale, and “stepped onto a diving board [over an empty swimming pool] to look over a fence, and the base of the diving board collapsed.” Was this foreseeable?

The Jacobs Court said no, it was not. And whether the person was required or invited to enter or encounter the danger area is a legal thing to consider. “[I]t was not reasonably foreseeable that [the husband] would expose himself to the risks associated with the empty pool, as he was neither required nor invited to do so. Simply stated, as a matter of law it was not foreseeable that he would knowingly embrace an entirely obvious risk by voluntarily using the diving board on an empty pool for a purpose for which it was not intended.’”

Thus, Landowner owed no duty there.

What happened here in Montes?

Plaintiff fell from a roof “steep angle and covered with brittle, broken, slippery and unstable Spanish tiles” and died.

Plaintiff, “had been drinking and had eaten a marijuana brownie earlier, was feeling high, and had been acting erratically before the fall.” “[T]here was an ‘open and obvious risk’ from the roof sloped at a steep angle and covered with brittle, broken, slippery and unstable Spanish tiles.

All Parties agreed “there was no need for [Plaintiff] to be on the roof.”

So, did Landowner owe Plaintiff a duty to warn of this dangerous condition? No. The Trial Court held in favor of Landowner’s motion for summary judgment, saying Landowner owed no duty. And the Court here confirmed that holding. The Court saw this case the same as Jacobs.

Per California law, when you own a property and know or should know of a dangerous condition, you may have a duty to warn of this condition. This 8/3/22 decision Montes v. Young Men’s Christian Association of Glendale (cited as 2022 WL 3053305) gives factors and further guidance.

First, the general law:

There is much to unpack with dangerous conditions on a property. For purposes here, I’ll just focus on foreseeability with a condition that is “open and obvious” and whether a landowner owes a duty to protect.

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious.” “‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’” “In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.’”

Ok, understood.

Montes also focuses on the case Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) (cited as 14 Cal.App.5th 438). In Jacobs, a person was viewing a property for sale, and “stepped onto a diving board [over an empty swimming pool] to look over a fence, and the base of the diving board collapsed.” Was this foreseeable?

The Jacobs Court said no, it was not. And whether the person was required or invited to enter or encounter the danger area is a legal thing to consider. “[I]t was not reasonably foreseeable that [the husband] would expose himself to the risks associated with the empty pool, as he was neither required nor invited to do so. Simply stated, as a matter of law it was not foreseeable that he would knowingly embrace an entirely obvious risk by voluntarily using the diving board on an empty pool for a purpose for which it was not intended.’”

Thus, Landowner owed no duty there.

What happened here in Montes?

Plaintiff fell from a roof “steep angle and covered with brittle, broken, slippery and unstable Spanish tiles” and died.

Plaintiff, “had been drinking and had eaten a marijuana brownie earlier, was feeling high, and had been acting erratically before the fall.” “[T]here was an ‘open and obvious risk’ from the roof sloped at a steep angle and covered with brittle, broken, slippery and unstable Spanish tiles.

All Parties agreed “there was no need for [Plaintiff] to be on the roof.”

So, did Landowner owe Plaintiff a duty to warn of this dangerous condition? No. The Trial Court held in favor of Landowner’s motion for summary judgment, saying Landowner owed no duty. And the Court here confirmed that holding. The Court saw this case the same as Jacobs.