Obviously, You Don't Need to Warn About That

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

Have you ever seen that warning sign about alligators?  The one that says, “Warning: feeding, enticing or molesting alligators is prohibited.”  You probably had the same thought as me.  Really?  Is that warning necessary?  Don’t we all learn before kindergarten that provoking man-eating animals is hazardous to our health?  That it creates “an unreasonable risk of harm?”  What about the sign warning you that your hotel balcony on the 17th floor “is not on ground level” and you should not jump off of it?  Seems pretty obvious, right? An owner/lessor/occupier/person who controls the land should not have to warn against that, right?

Right.  Fortunately, California law allows for the exoneration of a property owner against warning against “obviously unsafe dangers.”  Thus, there is no liability for failure to warn if the landlord can convince a jury that the following is true:

If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the owner/lessor/occupier/one who controls the property does not have to warn others about the dangerous condition.

That’s good.  So if there are alligators on your property you probably do not need to warn that taunting them is dangerous.  However, if it is not obvious that there are alligators on your property, and you know people enter your property, you probably should warn about the presence of alligators (especially if you live in California because alligators are not indigenous and it would not be obvious).

But the obviousness of a danger does not necessarily end the inquiry.  The owner/lessor/occupier/person who controls the land may still, nonetheless, have a duty to fix the condition or prevent access.  The law looks at it from the perspective of the injured party.  Is the condition so obvious that the injured person had to have known that injury could result if he proceeded?  Even if there was some negligence on the part of the owner/lessor/occupier/person who controls the land, the obviousness of the danger will mitigate against liability.  Most juries should agree that in proceeding into an obvious danger, even if there is no fence around it or no warning about it, you are putting yourself at risk and are primarily at fault if you get injured.

So even though you may not have to warn about a balcony on the 17th floor not being on ground level, you will need to have a code compliant railing at the level so that no one falls off of it.  Hopefully the difference between warning about an obvious danger and mitigating against harm from it makes sense.