Slip and Fall / Premises Liability Demand Letter - California

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF CALIFORNIA

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, California ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of California

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Claim Number: [Claim Number, if assigned]

Dear [Recipient Name]:

This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address] in [City], California. This letter constitutes our formal demand for settlement.

I. CALIFORNIA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

California Code of Civil Procedure § 335.1 provides a two-year period for an action for injury caused by another's wrongful act or neglect. Accrual, tolling, delayed discovery, and special rules for public entities or other defendants can affect the actual deadline; calculate and calendar it from the claim-specific facts rather than automatically using the second anniversary of the fall.

B. Pure Comparative Negligence

California follows the doctrine of pure comparative negligence established in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. Under this doctrine:

• The plaintiff's fault reduces but does not bar recovery
• The plaintiff may recover regardless of percentage of fault
• Damages are reduced in proportion to plaintiff's percentage of fault

Our client exercised reasonable care at all times and bears no responsibility for this incident.

C. Premises Liability Duty

Civil Code § 1714(a) supplies California's default rule of ordinary care in managing property. Current California authority begins with that general duty and asks whether the Rowland policy factors justify limiting it for a category of cases. Razoumovitch v. 726 Hudson Ave., LLC (2023) 93 Cal.App.5th 82, 89-94. Premises liability has the same duty, breach, causation, and damages elements as negligence. Id. at 89.

The Rowland considerations include:

• Foreseeability of harm
• Degree of certainty plaintiff suffered injury
• Closeness of connection between defendant's conduct and injury
• Moral blame attached to defendant's conduct
• Policy of preventing future harm
• Burden to defendant and community
• Availability of insurance

Civil Code § 847 is not a general trespasser or unimproved-property immunity; it concerns injuries proximately caused during specified felonies and requires the statutory charge-and-conviction conditions. Entrant status and any statutory immunity must be analyzed from the actual facts.

D. Notice Requirements Under California Law

When the owner or its employee did not create a transitory condition, the claimant must prove actual or constructive notice in sufficient time to correct it. Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203, 1206.

Actual Notice: The owner or employees knew of the dangerous condition.

Constructive Notice: The condition existed long enough that an owner using ordinary care would have discovered and corrected it. Evidence that the site was not inspected within a reasonable period may support an inference that the condition existed long enough to be discovered. Ortega, 26 Cal.4th at 1203, 1211-13.

IMPORTANT: The plaintiff has the burden of proving notice. However, circumstantial evidence may establish notice, including:

• Appearance of the substance (dirty, dried, tracked-through)
• Location in high-traffic area
• Inspection procedures (or lack thereof)
• Prior similar incidents

E. Inspection Evidence — Not a Separate Mode-of-Operation Rule

Do not plead Ortega as eliminating the notice requirement through a separate mode-of-operation doctrine. Its rule is evidentiary: a failure to inspect within a reasonable period can permit an inference that the specific condition existed long enough to provide constructive notice. What inspection interval was reasonable depends on the circumstances and risks of the particular premises. Ortega, 26 Cal.4th at 1207, 1211-13.

F. Open and Obvious Danger Doctrine

An obvious condition may itself warn and may eliminate a duty to remedy or warn in some circumstances, but not categorically. A duty may remain when it is foreseeable that practical necessity or other circumstances will lead a person to encounter the condition. Obviousness may also bear on breach, causation, and comparative fault. Razoumovitch, 93 Cal.App.5th at 94-97.

G. Landlord and Control Issues

California's ordinary-care rule applies to landlords, and residential statutes may impose additional repair and habitability duties. Razoumovitch, 93 Cal.App.5th at 89-94; Civ. Code § 1941. Identify who owned, occupied, possessed, controlled, maintained, created, or agreed to repair the precise condition; a party's label as landlord, tenant, owner, or contractor does not alone resolve liability.

H. Public-Property Claims and Claim Presentation

Public-property claims require specific statutory analysis, including:

• Claim presentation: A personal-injury claim generally must be presented to the proper public entity no later than six months after accrual. Gov. Code § 911.2. Suit generally may not be filed until the written claim is acted on or deemed rejected. Gov. Code § 945.4.
• Suit after rejection: If compliant written rejection notice is given, suit generally must be commenced within six months after delivery or mailing of that notice. If compliant notice is not given, § 945.6(a)(2) generally supplies a two-year accrual period. Calendar both presentation and suit deadlines.
• Dangerous Condition of Public Property: Gov. Code Section 835 - Government liable if:
• Property was in dangerous condition
• Injury was proximately caused by the dangerous condition
• The condition created a reasonably foreseeable risk
• Either a public employee created the condition, or the entity had actual or constructive notice
• Other defenses and immunities: Analyze separately under the statutes applicable to the property, activity, and defendant.

I. Damages and Allocation

No caps on compensatory damages in standard premises liability cases against private defendants.

Civil Code § 1431.2 does not create a right to pain-and-suffering damages. It defines economic and noneconomic damages for allocation purposes and generally makes each defendant's liability for noneconomic damages several and proportionate to that defendant's fault. Government Code § 818 bars punitive damages against public entities.

J. Punitive Damages

Civil Code § 3294 requires clear and convincing evidence of oppression, fraud, or malice. For liability based on an employee's conduct, subsection (b) imposes additional employer and corporate-managing-agent requirements. Ordinary premises negligence does not itself satisfy this standard.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:

• All surveillance video footage from the date of incident
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports
• Witness statements
• Maintenance logs and repair records
• Inspection records and checklists
• Prior complaints regarding hazardous conditions
• Prior incidents or falls at the same location
• Photographs of the incident location
• Written policies and procedures for maintenance
• Training records for employees
• All communications regarding the incident

This request identifies evidence that may be relevant to the claim. Preservation duties and available remedies for lost evidence depend on the facts and applicable procedural rules.

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type]. At all relevant times, [Property Owner Name] owned, operated, maintained, and/or controlled the subject premises.

B. The Hazardous Condition

On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically:

[DESCRIBE THE HAZARDOUS CONDITION IN DETAIL]

C. The Incident

On [Date of Incident], at approximately [Time], our client was lawfully present on the premises when [describe the fall in detail].

D. Notice

[Choose applicable theory:]

Actual Knowledge: Your insured had actual knowledge of the hazardous condition because [describe evidence].

Constructive Knowledge: The hazardous condition existed for a sufficient length of time that your insured, in the exercise of reasonable care, should have discovered and remediated it. Evidence includes:

• [Evidence of duration]
• [Evidence of inspection failures]
• [Prior incidents]

Inspection Evidence: [If supported] No reasonable inspection occurred within the period before the fall, supporting an inference that the condition existed long enough to be discovered and corrected.

IV. LIABILITY ANALYSIS

A. Duty of Care

Under California Civil Code Section 1714(a) and Rowland v. Christian, your insured owed our client a duty to exercise ordinary care in the management of the premises. This includes:

1. Maintaining the premises in a reasonably safe condition
2. Discovering dangerous conditions through reasonable inspection
3. Repairing, removing, or warning of dangerous conditions

B. Breach of Duty

Your insured breached its duty of care by:

• Failing to maintain the premises in a reasonably safe condition
• Failing to conduct reasonable inspections
• Failing to discover the hazardous condition
• Failing to warn of or remedy the dangerous condition
• [Additional specific breaches]

C. Comparative Fault Analysis

Our client exercised reasonable care at all times:

• [Describe client's reasonable conduct]
• Our client had no reason to anticipate the dangerous condition
• The hazard was not open and obvious

Under California's pure comparative negligence standard, even if any fault were attributed to our client (which we deny), your insured would remain liable for its proportionate share.

D. Causation

The dangerous condition was the direct and proximate cause of our client's injuries.

V. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

As a direct and proximate result of the fall, our client sustained the following injuries:

[LIST INJURIES]

B. Medical Treatment

Emergency Treatment:
[Describe emergency care]

Follow-Up Treatment:
[Describe ongoing treatment]

Current Status and Prognosis:
[Describe current condition and prognosis]

VI. DAMAGES

A. Medical Expenses

Future Medical Expenses: $[Amount]

B. Lost Wages

C. Pain and Suffering

Our client claims noneconomic damages including:

• Physical pain and suffering
• Emotional distress
• Inconvenience
• Loss of enjoyment of life

[Describe pain and suffering in detail]

D. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear liability of your insured, the severity of our client's injuries, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

[USE THIS TIME-LIMITED LANGUAGE ONLY FOR A PRE-SUIT POLICY-LIMITS DEMAND THAT COUNSEL HAS MADE COMPLIANT WITH CODE OF CIVIL PROCEDURE §§ 999-999.5.]

This written offer is labeled a time-limited demand under Code of Civil Procedure § 999.1 and offers to settle all covered claims within the applicable policy limits, with satisfaction of liens and a complete release of the insureds from present and future liability for this occurrence. Confirm that the final demand states the loss date and location, claim number if known, all known injuries, reasonable supporting proof, exact acceptance method, payees, release terms, and every other material term.

This demand will remain open for [not fewer than 30 days from transmission by email, facsimile, or certified mail / not fewer than 33 days from transmission by mail], expiring at 5:00 p.m. Pacific Time on [Expiration Date]. Send it to an address permitted by § 999.2 and retain proof of transmission.

Bad Faith Warning

[If damages approach or exceed policy limits:]

Our client's damages [approach / exceed] available policy limits. This offer provides an opportunity to resolve the covered claims within those limits. Counsel should evaluate reasonableness and any potential extracontractual consequences under the full facts and current insurance law; substantial compliance with §§ 999-999.5 matters in a represented claimant's later extracontractual action. See § 999.4.

VIII. DOCUMENTATION ENCLOSED

• Complete medical records and bills
• Photographs of the incident location
• Photographs of injuries
• Incident report (if obtained)
• Employment records and lost wage documentation
• [Additional documentation]

IX. CONCLUSION

The evidence establishes clear liability on the part of your insured. Your insured's failure to exercise ordinary care in maintaining safe premises caused our client's serious injuries.

We urge prompt attention to this matter.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
State Bar of California No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

CALIFORNIA-SPECIFIC PRACTICE NOTES

• Pure Comparative Negligence: Recovery allowed regardless of plaintiff's percentage of fault.

• Ordinary-Care Baseline: Civil Code § 1714 supplies the default duty; Rowland factors are used to decide whether policy justifies limiting that duty for a category of cases.

• Constructive Notice: Ortega permits an inference from failure to inspect within a reasonable time; it does not dispense with notice through a separate mode-of-operation rule.

• Government Claims: Gov. Code § 911.2 generally requires presentation within six months after accrual; §§ 945.4 and 945.6 govern when suit may be filed and the post-rejection deadline.

• CCP Section 998 Offers: Important cost-shifting mechanism for litigation strategy.

• Section 3291 Interest: In a personal-injury action, a plaintiff who makes a qualifying Code of Civil Procedure § 998 offer and obtains a more favorable judgment receives 10% interest from the date of the first exceeded offer—not automatically from complaint filing. Section 3291 excludes public entities and covered public employees.

• Time-Limited Demands: For covered pre-suit policy-limits demands, follow Code of Civil Procedure §§ 999-999.5's content, timing, delivery, and substantial-compliance rules.

• No Damage Caps: No caps on compensatory damages against private defendants.

• Venue: CCP Section 395 - County where injury occurred or where defendants reside.

SOURCES AND REFERENCES

• California Legislative Information, Civil Code §§ 847, 1714, 1431.2, 1941, 3291, and 3294; Code of Civil Procedure §§ 335.1, 395, 998, and 999-999.5; Government Code §§ 818, 835, 911.2, 945.4, and 945.6 — https://leginfo.legislature.ca.gov/faces/codes.xhtml
• Razoumovitch v. 726 Hudson Ave., LLC (2023) 93 Cal.App.5th 82 — https://www4.courts.ca.gov/opinions/archive/B316606.PDF
• Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200 — https://law.justia.com/cases/california/supreme-court/4th/26/1200.html
• Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 — https://law.justia.com/cases/california/supreme-court/3d/13/804.html