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

Under California Code of Civil Procedure Section 335.1, the statute of limitations for personal injury claims arising from premises liability is two (2) years from the date of injury. This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

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 Standard - Unified Duty

California has abolished the traditional distinctions between invitees, licensees, and trespassers for adult entrants. Under California Civil Code Section 1714(a) and Rowland v. Christian (1968) 69 Cal.2d 108:

Everyone is responsible for an injury occasioned to another by their want of ordinary care or skill in the management of their property. The owner owes a duty of reasonable care to all persons lawfully on the premises.

Factors considered 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

Exception for Trespassers: California Civil Code Section 847 provides limited immunity for injuries to trespassers on unimproved property.

D. Notice Requirements Under California Law

California requires proof of actual or constructive notice for transitory conditions:

Actual Notice: The owner or employees knew of the dangerous condition. Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200.

Constructive Notice: The condition existed for such a length of time and under such circumstances that a reasonable person exercising ordinary care would have discovered it. Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200.

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. Mode of Operation Doctrine

California recognizes the mode of operation doctrine. Under Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, the California Supreme Court clarified:
- The mode of operation rule is not a substitute for the notice requirement
- However, evidence of the defendant's mode of operation is relevant to determining whether the owner had constructive notice
- Where self-service operations create continuous risks, more frequent inspections are required

The defendant may be deemed to have constructive notice where:
- The business model creates foreseeable risks
- No evidence of recent inspection exists
- The nature of the operation makes spills predictable

F. Open and Obvious Danger Doctrine

Under California law, the open and obvious nature of a danger does not automatically eliminate the duty of care. Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104.

The analysis considers:
- Whether the owner should anticipate harm despite the obvious nature
- Whether precautions were feasible
- The plaintiff's comparative fault

The open and obvious nature goes to comparative fault, not duty elimination.

G. Natural Accumulation Rule (Limited Application)

California does not strictly follow the natural accumulation rule. Property owners have a duty of reasonable care regarding:
- Water tracked into premises
- Natural accumulations that create foreseeable risks
- Conditions aggravated by property design

Swanberg v. O'Mectin (1984) 157 Cal.App.3d 325.

H. Res Ipsa Loquitur

California recognizes res ipsa loquitur under Evidence Code Section 646 and CACI 417:
1. The accident is of a kind that ordinarily does not occur without negligence
2. The instrumentality was in the defendant's exclusive control
3. The plaintiff did not contribute to the accident

Brown v. Poway Unified School District (1993) 4 Cal.4th 820.

I. Landlord vs. Tenant Liability

California landlord liability under Civil Code Section 1714 and case law:
- Common Areas: Landlord owes duty of reasonable care for areas retained under control. Peterson v. Superior Court (1995) 10 Cal.4th 1185.
- Leased Premises: Landlord generally not liable unless:
- Landlord retained control
- Landlord had actual knowledge of a dangerous condition at time of lease
- Landlord negligently repaired
- Landlord created the condition
- Residential Landlords: Civil Code Section 1941 imposes habitability duties.

J. Government Immunity - California Tort Claims Act

Claims against public entities are governed by Government Code Section 810 et seq.:
- Notice Requirement: Claim must be filed within 6 months for personal injury. Gov. Code Section 911.2.
- 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
- Immunities: Various immunities for discretionary acts, hazardous recreational activities, etc.

K. Damage Caps

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

Government claims: No specific damage caps for personal injury, but punitive damages not available against public entities.

L. Punitive Damages

Available under Civil Code Section 3294 for "oppression, fraud, or malice." Requires clear and convincing evidence. No statutory cap, but subject to constitutional due process limits.

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

California recognizes independent tort claims for intentional spoliation of evidence. Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1. Destruction of evidence may result in sanctions and adverse inferences.

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]

Mode of Operation: [If applicable] Your insured's self-service mode of operation made such hazards foreseeable and continuous, requiring more frequent inspections than were conducted.

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

Under California Civil Code Section 1431.2, our client is entitled to compensation for:
- 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]

This is a time-limited demand pursuant to California law regarding insurer bad faith. Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654.

This demand will remain open for thirty (30) days from the date of this letter, expiring at 5:00 p.m. Pacific Time on [Expiration Date].

Bad Faith Warning

[If damages approach or exceed policy limits:]

Our client's damages clearly [approach / exceed] available policy limits. Under California law, your company has a duty to accept reasonable settlement demands within policy limits. Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425. Failure to do so may expose your company to bad faith liability for the full amount of any excess judgment.

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.

• Unified Duty Standard: Rowland v. Christian abolished invitee/licensee distinction. Reasonable care owed to all lawful entrants.

• Mode of Operation: Ortega case - doesn't eliminate notice requirement but is relevant to constructive notice analysis.

• Government Claims: 6-month notice period under Gov. Code Section 911.2 - CRITICAL deadline.

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

• Prejudgment Interest: Civil Code Section 3291 - Available from date of filing if conditions met.

• Bad Faith: California is plaintiff-friendly on insurer bad faith. Time-limited demands create significant exposure.

• Spoliation: Independent tort claim available for intentional spoliation.

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

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