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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111679
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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My minor son suffered a substantial injury riding s bikes on

Customer Question

My minor son suffered a substantial injury riding his bikes on someone else's property. We went to the ER, and the treatment is ongoing. I have a few questions:
1. how can i prove that the landlord owes a duty of care to my son? (prove liability)
2. how soon can I start the prelitigation demand letter? I'm concerned that the owner may sell his property, at which time the LLC may be dissolved, or the insurance may expire, or the LLC members may lose motivation to deal with me.
3. i'd like to represent myself. Is there a place where I can purchase or download forms related to PI cases. Forms such as the prelitigation demand letter, discover, etc.
4. can i hire an attorney just piecemeal? to send the prelitigation letter, for example?
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Under CA law, you have to prove essentially that the landowner knew of a hazard on their property and failed to warn or failed to properly maintain their property to hold them liable for injury. The courts hold, “It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.” See: Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].

The courts find “The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . .” See: Rowland v. Christian (1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561].

It is well settled under CA law that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. "This principle is sometimes referred to as the ‘trivial defect defense,’ and it is an aspect of duty that a plaintiff must plead and prove. . . . Moreover, what constitutes a minor defect may be a question of law.” See: Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388–389 [132 Cal.Rptr.3d 617].

Additionally, the CA courts emphasize that the liability imposed is for negligence. They state that "the question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” See: Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 371 [178 Cal.Rptr. 783, 636 P.2d 1121].

So you must prove the landowner failed to use reasonable care to keep the property in a reasonably safe condition. A landowner who owns/leases/occupies/ controls a property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.

You can send a demand letter at any time if you choose.

You can represent yourself, you cannot represent your child. The claim here is your child's claim and as such it requires you have an attorney represent him, if not it would be unauthorized practice of law for you to do so.

You can hire a personal injury lawyer, they work based off of a contingency fee, meaning they will take a fee when they obtain a judgment/settlement in the case.

Customer: replied 1 year ago.

Can't i represent the case since my child is a minor and cannot represent himself?

My son rode his bikes down the property's steep driveway. A gate was placed at the bottom of the driveway. My son didn't see the gate. Had the gate been installed at the top of the driveway the accident would have been avoided. Now, assuming that the gate was placed there legally (with a permit), can a case still be made that that the owner built an attractive nuisance?

thank you,

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

I am sorry, the law says a person can represent yourself only, nobody else including your minor child, it would be a unauthorized practice of law I am afraid.

Not every accident that occurs on someone else's property is the fault of the property owner, as the courts state above. If there was a legally placed gate, that is not negligence that the courts were referring to in the above cases. Merely because someone was inattentive and did not see it would not be sufficient to hold the owner liable I am afraid.

Expert:  Law Educator, Esq. replied 1 year ago.

A gate is not an attractive nuisance, it does not encourage people to come around it and it is not inherently dangerous. Also, a sloping driveway is not an attractive nuisance, it is something that a person needs for access and that is why the gate is at the bottom to keep people out.

Customer: replied 1 year ago.

thank you. I see that this websites offers PI experts. Do you mind referring this to one? thank you,

Expert:  Law Educator, Esq. replied 1 year ago.

I am a personal injury attorney. I do not understand but if you would like me to opt out and leave the question I am more than happy to do so.

I am sorry you may not like what the law says, that is why I gave you not only the law but named the cases for you so you could read it yourself. Lawyers do not make this stuff up, we merely have the misfortune of reporting it to people and it may or may not be favorable to their facts, but the attorney cannot help that.

Expert:  Law Educator, Esq. replied 1 year ago.

By the way the categories are set up by the site, but the attorneys have multiple types of practices and work in all of the categories.

Customer: replied 1 year ago.

Frankly, I'm underwhelmed. First, I don't need all these references. Second, all the arguments you've made would be the arguments the owner would make. I need an attorney that can give me a leg to stand on.

Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply

If you are going to be pursuing a case in court, you do indeed need to know the law I am afraid. Also, another piece of information for you is that if your son wins money, you need to have someone (or yourself) appointed as legal guardian over his property and will have to post a bond as trustee/guardian over that judgment award.

Also, it is not that I am taking the position of a defense attorney. I have no dog in your fight, I am presenting only an unbiased recitation of what the law says and I have no comment on the merits of your case, because I cannot review all of the facts or evidence. You have to match your son's facts to the law above to fit your son's case within those laws, which you say you do not need to know, to determine whether or not you could prove a case against the landowner.

However I will opt out and leave the question open for other experts who may wish to assist you. Best of luck.