 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Andonagui v. May Department Stores Company4/13/2005
urt erred in sustaining defendant's demurrer based on defendant's statute of limitations argument.
[This Discussion, part III is not included for publication]
III. Plaintiff's Willful Failure to Warn Count
Plaintiff's complaint contained two causes of action: general negligence and premises liability. Plaintiff pleaded her premises liability cause of action in two counts - negligence and willful failure to warn under Civil Code section 846 - by checking the corresponding boxes for those counts on the form complaint.
Civil Code section 846 provides private landowners with limited liability for injuries persons sustain while using their land for recreational purposes. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.) "The statute provides an exception from the general rule that a private landowner owes a duty of reasonable care to any person coming upon the land. [Citations.] Under section 846, an owner of any estate or other interest in real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity . . . ." (Ornelas v. Randolph, supra, 4 Cal.4th at p. 1099.) "A landowner's conduct becomes willful or malicious only if three elements are present: `"(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril."' [Citations.]" (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859.)
Plaintiff's second cause of action and her willful failure to warn count are based on the following factual allegations:
"While Plaintiff was lawfully present at the premises located at 1900 Montebello Town Center, Montebello, CA 90640, said Defendants, and each of them, so carelessly, recklessly and negligently owned, controlled, managed and maintained the subject premises so as to proximately cause Plaintiff to fall after tripping on a metal rack which was left on the floor. This condition was known, or in the exercise of ordinary and reasonable care, would have been known to Defendants, and each of them, in adequate time for a reasonably prudent person to warn of, repair and make safe the condition. As a proximate result of the negligence of Defendants, and each of them, Plaintiff sustained injuries resulting in the damages herein alleged."
Defendant demurred to plaintiff's willful failure to warn count on the grounds that it failed to state facts sufficient to constitute a cause of action and it was uncertain in that it failed to allege facts that supported the alleged willful or malicious failure to warn. Plaintiff did not address this argument in her opposition to defendant's demurrer. The trial court granted defendant's demurrer solely with respect to defendant's statute of limitations argument. Although defendant again raises this argument as an alternative basis for affirming the trial court's demurrer with respect to the willful failure to warn count, plaintiff, as in the trial court, has chosen not to address the argument.
Plaintiff alleges she sustained her injuries in a store, with no indication that a recreational purpose was involved. None of the facts alleged supports a finding that defendant's conduct was willful or malicious, as required by Civil Code section 846, because the facts alleged do not show that defendant had "actual or constructive knowledge that injury a probable, as opposed to a p
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|