Can a person be held liable in California if an intruder falls into their pool which didn&#39;t have a fence? According to the Municipal Code of Santa Monica: The swimming pool or spa, or the entire parcel on which it is located, shall be walled or fenced from the street or from adjacent properties; and where located less than 30 feet to any parcel line, shall be screened by a masonry wall or solid fence not less than 6 feet in height on the side facing such parcel line, subject to the requirements of Section 9.21.050, Fences, Walls, and Hedges. In the TV show Curb Your Enthusiasm the following story occurs: A person breaks into a house in Santa Monica for the purpose of robbery (not disputed) They run out through the back yard They stumble, fall into the unfenced pool and drown In real life, can the owner of the house be held civilly or criminally liable in this situation? On one hand, the pool did not have a fence despite it being legally required. On the other, they did enter the property illegally.
Short Answer In real life, can the owner of the house be held civilly or criminally liable in this situation? No. Long Answer On one hand, the pool did not have a fence despite it being legally required. On the other, they did enter the property illegally. Negligence Per Se And Attractive Nuisance The doctrine you are considering first is called &quot;negligence per se&quot; and states that failure to follow a penal statute or other law or regulation is negligent as a matter of law if the harm caused by failing to take the action it mandates is the kind of harm that the statute was intended to prevent. It isn't perfectly clear, but the answer to that is probably &quot;no, this is not a negligence per se&quot; case. Laws requiring pools to be fenced are largely directed at a particular type of tortious conduct called an &quot;attractive nuisance&quot; that could cause, for example, children who can't swim to be attracted to a pool that is dangerous to them without supervision. These laws are not intended to protect adult robbers (if the person engaged in robbery were an armed seven years old, that might be another story). California, however, has discarded the attractive nuisance doctrine that used to be part of its law, in 1970, in the case of Beard v. Atchison. Common Law Premises Liability In California The common law duty that a property owner owes to trespassers is to keep it free of deadly traps. You have liability if you turn your lawn into a literal mine field full of explosive land mines. But, you did not at common law owe a duty of reasonable care to prevent foreseeable accidental injury to trespassers such as robbers. So, there would be no common law duty here. But, California has abandoned the strict common law distinction in premises liability between invitees, licensees, and trespassers in lieu of a general duty to use reasonable care that is fairly tailored to the precise circumstances of the accident. California Civil Jury Instruction No. 1001 (2000) citing Ann M. v.Pacific Plaza Shopping Center, 6 Cal.4th 666, 674-675, 25 Cal.Rptr.2d 137, 863 P.2d 207 (1993). California, rather than focusing on the nature of the duty that the landlord owes to a trespasser, focuses more on this factor as part of the question of issues like whether the harm was foreseeable. A Statute That Is On Point And Controlling Here Despite this evolution in California's common law of premises liability, however, California does have a statute that singles out felons who are injured on someone else's property in the course of a felony, specifically, California Civil Code § 847, which states (emphasis added): (a) An owner, including, but not limited to, a public entity, as defined in Section 811.2 of the Government Code , of any estate or any other interest in real property, whether possessory or nonpossessory, shall not be liable to any person for any injury or death that occurs upon that property during the course of or after the commission of any of the felonies set forth in subdivision (b) by the injured or deceased person. (b) The felonies to which the provisions of this section apply are the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, or threat of great bodily harm; (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm; (6) lewd acts on a child under the age of 14 years; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing great bodily injury; (17) exploding a destructive device or any explosive with intent to murder; (18) burglary; (19) robbery; (20) kidnapping; (21) taking of a hostage by an inmate of a state prison; (22) any felony in which the defendant personally used a dangerous or deadly weapon; (23) selling, furnishing, administering, or providing heroin, cocaine, or phencyclidine (PCP) to a minor; (24) grand theft as defined in Sections 487 and 487a of the Penal Code ; and (25) any attempt to commit a crime listed in this subdivision other than an assault. (c) The limitation on liability conferred by this section arises at the moment the injured or deceased person commences the felony or attempted felony and extends to the moment the injured or deceased person is no longer upon the property. (d) The limitation on liability conferred by this section applies only when the injured or deceased person's conduct in furtherance of the commission of a felony specified in subdivision (b) proximately or legally causes the injury or death. (e) The limitation on liability conferred by this section arises only upon the charge of a felony listed in subdivision (b) and the subsequent conviction of that felony or a lesser included felony or misdemeanor arising from a charge of a felony listed in subdivision (b). During the pendency of any such criminal action, a civil action alleging this liability shall be abated and the statute of limitations on the civil cause of action shall be tolled. (f) This section does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. (g) The limitation on liability provided by this section shall be in addition to any other available defense. This statute is controlling and would probably immunize the property owner from liability in the fact pattern of the question. My initial review suggests that originally, it contained only parts (a) to (c) and (g) which are more emphatic. But, later, parts (d) to (f), which created narrow exceptions to this general rule, were added.
Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place. The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order. The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house. The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have. But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring. Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner. But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it. If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed.
Is entry into the yard subject to 24 hour notice? Most likely it is. Note that section § 47-8-3 defines both dwelling unit and premises. The latter encompasses the term &quot;appurtenances&quot;, which the Black's Law Dictionary defines, inter alia, as &quot;an adjunct; an appendage; [...] garden [...]&quot;. At least in the context of fenced backyard, the fact that § 47-8-3 defines dwelling unit and premises separately does not exclude &quot;premises&quot; from the scope of § 47-8-15. That is because the fence is &quot;a structure [...] or part of a structure [...] that is used as a home, residence&quot;. Indeed, the existence of the fence suggests that the backyard is intended for only that tenant's exclusive use/enjoyment, with the implications it has on tenant's privacy.
united-states The argument you are making, restated in legal terms, is roughly as follows: Users have a duty to not reuse passwords. When a user reuses a password, and their password is subsequently stolen and used to fraudulently access the plaintiff's system, that password reuse becomes the proximate cause of the plaintiff's business injury. Therefore, our storage of plaintext passwords cannot be the proximate cause, and so we cannot be liable. This argument is mostly wrong. Leaving aside the fact that you're going to have a tough time convincing a jury of #1, a tort may have more than one proximate cause. Both the password reuse and the plaintext storage were but-for causes of the injury (i.e. if either had not happened, then the injury would not have happened). The injury was foreseeable, because it is well known in the security industry that many users in fact do reuse their passwords, professional advice notwithstanding. In most US states, that's enough to establish proximate cause. In the minority of states using the &quot;direct causation&quot; test, you might be able to characterize the user's password reuse as an intervening cause, and thereby avoid liability. However, there are other elements of tort law which must be established aside from proximate cause, and so by itself this does not resolve the question of liability. Other defenses might be applicable; for example, the terms of service might contain an indemnification agreement, which (if upheld) would make the user(s) responsible. The defendant might also argue that there is no duty of care, that it was not breached, or that the injury was or should have been de minimis (i.e. that the plaintiff should have taken greater care to prevent damages arising from account hijacking).
No Section 18-1-704.5. (1) says that : The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (*emphasis added) Subsections (2), (3), and (4) all refer to &quot;any occupant of a dwelling&quot; as the class authorized to use force by this section. An offie is not a dwelling. Section 18-1-901. Definitions says: (g) &quot;Dwelling&quot; means a building which is used, intended to be used, or usually used by a person for habitation. Section Section 18-1-704 provides that: (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.of person's authored by this law to use force Under that provision, the use of deadly force does not seem clearly justified. It is highly questionable that &quot;a lesser degree of force is inadequate&quot;. Any conclusion that the intruder represents an &quot;imminent use of unlawful physical force&quot; seems dubious, but I can't say what a court might find. This law is fairly recent, there may be no published case law for it.
In California (where lost+found laws have been discussed quite a lot), this would be either "lost property" or "abandoned property". With abandoned property, you can do what you want. With lost property, it is legal to ignore it. If you take it, you have the obligation to try to return it to the owner. If you don't do that, it's theft. If you don't take it, you have no obligation whatsoever. Put it somewhere where the loser (the person who lost it) is more likely to find it, for example on the street. Don't take anything. Clarification for comments: There is a box. And the owner of the box is nowhere to be seen. That box is by definition lost or abandoned - it is abandoned if the owner got rid of it intentionally, it is lost if the owner is looking for it. We don't know. We can make guesses depending on the situation. No matter whether lost or abandoned, you are legally absolutely fine if you just ignore it. You have no reason to try to return it to its owner. If you don't make it your business, it's not your business. But if you decide you want the box, or bits of it, and it isn't abandoned (which is hard to know for sure), then you have to try to find the owner first, and if you don't find them, then you can keep it.
There don't appear to be any Santa Clara-specific laws on the matter, so California law (including this) would govern this situation. A landlord generally has an obligation to maintain the premise in habitable condition (can't stick you with the bill for repairing the water main), and has to fulfill the obligations of the lease (if the lease says that a working washing machine is part of the premise, the landlord has to fix it if it breaks). An AC is not part of what makes a unit &quot;habitable&quot; in the legal sense. You should have to scrutinize exactly what the lease says about the AC, but saying that it is provided &quot;as is&quot; indicates that the landlord is disclaiming any obligation to fix it if it breaks. You are allowed to use it, but if it breaks, he won't fix it. The fact that he has no obligation to fix it does not relieve you of your duty to care for his property (irrespective of the fact that it was abandoned by a prior tenant – there's a notification procedure regarding abandoned real property, which I assume the landlord followed so it is his AC). Your obligation to compensate the landlord for damaging his property is not triggered by his legal obligation to maintain the property, it is triggered by the fact that it is his property. So you are legally on the hook: under §1929, &quot;The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his want of ordinary care&quot;. However, the size of the hook is not clear: the cost of replacement or repair could be vastly higher than the actual value of the unit. There is a legal concept of &quot;unjust enrichment&quot; that could be applicable, if the landlord plans to bill you $500 for a new AC which he got for free, but you'd probably need to hire a lawyer to make a solid legal argument in court.
There are a few problems with your line of reasoning, but the main one is that if the government can't locate a defendant, California's Rules of Civil Procedure provide a variety of alternative means of service. When all else fails, the government can serve the defendant &quot;by publication,&quot; meaning that they simply publish a notice of the lawsuit in a newspaper. If the defendant fails to appear to defend the suit after service by publication, the court will enter default judgment, the government will seize the property, sell it, and use the resulting revenue to continue operating.