Q: I work at home and regularly receive UPS deliveries of material. Last week, the deliveryman slipped on the front stairs, hurting himself. Those stairs have been in bad shape for years, and I’ve asked for repairs, but to no avail. I imagine that the delivery service will go after the property owner, but am I liable, too? –Leah C.
A: Practically speaking, there’s little chance that the delivery company (more precisely, its workers’ compensation insurance carrier) will go after you as a source of compensation for the employee’s injuries, pain and suffering, and lost wages. Chances are, the insurance company will pay the claim, then look to your landlord for reimbursement, who will refer the matter to his insurance carrier.
If it can be shown that the deliveryman slipped because of the dangerous stairs that the landlord knew about but failed to fix, the workers’ comp carrier will get reimbursed for the amount it paid on the claim by your landlord’s insurance company (and the landlord’s premiums may go up).
But let’s suppose that your landlord has no liability insurance, and you, on the other hand, have a renters insurance policy, which covers you when others are hurt on the property as a result of your carelessness. The delivery service will, again, refer the claim to its workers’ comp carrier, who will look around for a source of reimbursement. Going after your insurance policy (and its deep pocket) will be more attractive than trying to get money from your landlord.
Are you legally liable for the deliveryman’s injuries? Perhaps, because you owe the deliveryman a "duty of care," just as your landlord owes the same duty to you. The deliveryman is a "business invitee," someone whom you must at least warn of imminent dangers, if you cannot fix them (no one expects you to repair the stairs yourself).
Because you knew of the dangerous condition of the steps and didn’t warn the delivery service (nothing wrong with a "Caution: Loose stairs!" sign at the bottom, or a written warning sent to the company), you could be held partly at fault. The extent of your exposure would be the extent to which you were responsible, according to a judge, jury, or mediator.
For example, if they found that you were 25 percent responsible (as opposed to your landlord’s 75 percent), then you’d be on the hook for only 25 percent of the delivery person’s damages.
Tenants will not be held responsible in every "shared knowledge" situation, however. Suppose it’s your neighbor who slips and falls on the bad stairs: Will you be liable, if only partly, for her injuries, because you knew of the dangerous situation? Probably not, because you do not owe a duty of care to your fellow tenants.
What about a guest of yours: Must you warn guests of dangerous situations? The answer here will vary according to state law, but many states impose a duty of care for social, as well as business, invitees.
Q: I’m using a form for collecting a bounced-check fee, which I got from my apartment association. It tells tenants that they will be "liable" for damages of at least $100 or higher (up to three times the amount of the check but no more than $1,500). I must admit, back in the day, I bounced a rent check myself, but the fee was much lower. Was I just lucky? –Amy F.
A: The monetary consequences you’re describing sound a lot like California’s bounced-check statute, Civil Code Section 1719. That statute does indeed specify that people who issue bounced checks may become liable for those damages — but there are two big steps that need to be taken first.
The holder of the bad check must demand that the issuer make good on the check, and give the person 30 days to do so. Then, the holder must go to court (small claims court will do) and sue over the check. Only if the holder wins will the judge turn to these possible damages, and impose them if appropriate
Like many states, California provides for a simpler remedy for holders of bad checks, one that does not require going to court. It’s in the same statute, just before the "go to court" remedy. It provides that the holder may demand the amount of the check and a service charge not to exceed $25 for the first check, and not more than $35 for each subsequent check passed on insufficient funds.
It seems that the form you’re using doesn’t mention this simpler approach, which of course is what any landlord would use. No landlord is going to allow a tenant to remain in the rental, without paying the rent, while the landlord goes to small claims court to sue over the bounced check.
Instead, the landlord will send a pay-or-quit notice, and begin eviction proceedings if the tenant neither pays nor leaves. So why do you suppose the writers of this form omitted the obvious remedy, and instead advised the tenant of a course of action that no reasonable landlord would undertake?
One is tempted to conclude that we’re dealing with an example of intentional sneakiness here. The mischief of this form, which on its face is probably a correct statement of law, is that it doesn’t explain that the landlord has to go to court — and win — for the Draconian consequences listed on the form to apply.
As a result, both landlord and tenant may mistakenly conclude that the landlord can unilaterally impose these significant consequences. The result may be what the form writers had in mind — scaring the tenant into making good on the check, and possibly giving the landlord a tidy bit of income — but it’s accomplished by sleight of hand. Why else would the form fail to mention the $25/$35 option?
Even well-meaning landlords may be misled into thinking that they may charge $100 (or more), not having been educated by their own form (and their own apartment association). The consequences could be costly: If the tenant refuses to pay the fee and raises this as a defense when the landlord evicts for nonpayment, the landlord will lose the case, and may have to pay the tenant’s attorney fees and court costs.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at firstname.lastname@example.org.
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