A Brief Synopsis of Non-Municipal Liability in New York
By: Thomas J. Foley, Esq. and Jay D. Jacobson, Esq.
Over the past few years, much attention has been given to the Courts strict interpretation of the serious injury threshold requirement in the arena of motor vehicle liability actions. The Courts have been dismissing these threshold cases more and more frequently using grounds from the substantive principal of 'gap in treatment' doctrine to the purely technical - i.e. doctor reports failing to list 'normal' ranges of motion of the spine. However, not as much attention has been given to the Courts increasing willingness to dismiss premises liability cases for a myriad of reasons as well. In order to avoid having ones case dismissed, a diligent practitioner should be aware of the general requirements for premises liability actions before a suit is brought. This article outlines a recommended analysis using general principles for evaluating a non-municipal premises liability action when a potential client walks through the door.
In order to insure that a potential client claiming to have fallen on the property owned, leased and/or rented by another has a viable claim, it is suggested that you determine the following up front: (1) Was the condition that caused the fall a substantial enough danger or defect caused by the poor maintenance of property? (2) Was the condition that caused the fall a statutory violation, did the defendant(s) create the condition, know of the condition or should have known about the condition? (3) Can it be proven that there is a connection between the condition and the fall? If any of these are answered in the negative, it is suggested that the case not be taken.
Substantial danger or defect
For purposes of this article, common causes of falls, i.e. wet floors, broken stairs, defective sidewalks, etc., will be referred to using the term conditions. The rules governing what is a substantial dangerous or defective condition differ depending on the target defendant and the circumstances surrounding the fall. However, common to all is the need to prove that the condition leading to the fall was serious enough to cause a reasonable person to slip and/or trip on the condition. If the condition which caused the fall is trivial, the Courts are likely to dismiss the cause of action as a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance. Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997); Shohet v. Shaaya, ___ A.D.3d ___, 2007 WL 2481466 (2nd Dept. September 4, 2007); Joseph v. Villages at Huntington Home Owners Ass'n, Inc., 39 A.D.3d 481 (2nd Dept. 2007). A few examples of actionable conditions include the border of a parking lot surface and adjoining sidewalk with an irregular depression [see, Jacobsen v. Krumholz, 41 A.D.3d 128 (1st Dept. 2007)]; a three inch hole in a steps leading to a store [see, Sotomayor v. Pafos Realty, LLC, 841 N.Y.S.2d 619 (2nd Dept. 2007)]; and numerous cracks that existed in the defendant's private roadway [see, Cherry v. Daytop Village, Inc., 41 A.D.3d 130 (1st Dept. 2007)]. The governing principle in any premises liability action is that a landowner-defendant must act reasonably in maintaining their property in a reasonably safe condition. Basso v. Miller, 40 N.Y.2d 233. In the above cited examples, the Courts have found a question of fact as to whether or not the condition constituted a dangerous condition.
Paradoxically, if a condition is readily apparent, the Courts expect a person to avoid the 'open and obvious condition' and therefore, the Courts will not find a defendant liable for their failure to warn of the condition. Groon v. Herricks Union Free School Dist. 42 A.D.3d 431 (2d Dept. 2007). As an extreme example, the Second Department recently held that a landowner had no duty to warn that jumping off the 50 foot cliff on his property was dangerous. The Court reasoned that the dangers associated with jumping off a 50 foot cliff were open and obvious. Hinchey v. White Willow, LLC, 42 A.D.3d 483 (2nd Dept. 2007).
Notice of the condition
Even when conditions on the property reach an unsafe level, a defendant is only liable for those dangerous conditions that it created, knew of (actual notice), or should have known about (constructive notice). You will not have to prove a defendant's actual or constructive notice of a condition for liability purposes if the defendant caused or created the condition. Ohanessian v. Chase Manhattan Realty Leasing Corp., 193 A.D.2d 567 (1st Dept. 1993). If it can be shown that the defendant caused or created a substantial defect or condition, this will establish a triable issue of fact that precludes summary.
Actual notice is a rarity. But there are cases where evidence can be found, either through documentary evidence (prior written notice maps, Notices of Claims, prior accident reports, prior lawsuits or post accident admissions), that you may assist you in proving the defendant had actual notice of a condition.
A defendant has constructive notice of a defect when the defect is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected ( see Gordon v. American Museum of Natural History, 67 NY2d 836, 837); Rodriguez v. Sung Hi Kim, 42 A.D.3d 442, (2 Dept. 2007). In Rodriquez, the Court determined that the landlord was not liable in a wrongful death action brought after water in the apartment's shower suddenly became very hot, inflicting severe burns on plaintiff's decedent, where landlord did not have actual or constructive knowledge of any dangerous condition of the boiler or the building's plumbing system.
Courts are reluctant to find defendants liable for falls that occur on interior floors. The difficulty of proving notice to a landowner for a transient condition, such as spilled coffee on a lobby floor, is obvious. Cases such as this should be examined very carefully. If you are unable to prove that the condition leading to the fall existed for a long enough period to give the landowner notice, your suit will not be successful. However, if it can be shown that a transient condition (such as water on the floor), was a recurring condition, this may suffice in giving the requisite notice to the defendant. In Goldblatt v. Fairway Supermarket, 68 AD2d 248 (1st Dept. 2000), the First Department highlighted that the plaintiffs testimony at her deposition was that she was a frequent customer at the defendants store. While at the defendants store, the plaintiff routinely noticed food and paper waste on the floor, which also was present when she fell. The Court held that the plaintiffs testimony on its own was enough evidence to satisfy the plaintiffs obligation to submit sufficient facts to establish actual or constructive notice of the defective condition in order to present a trial issue on liability.
In addition to being liable under a created or noticed defect, a defendant may be liable for a statutory violation in connection with maintenance of the property. These cases arise when the client claims to have fallen on property due to a condition that a defendant had an affirmative, statutory, obligation to address. Examples of statutory violations involve stairs without the proper treads Sarmiento v. C & E Associates, 40 A.D.3d 524 (1st Dept. 2007) and the failure to install a handrail, Hotzoglou v. Hotzoglou, 221 AD2d 594 (2nd Dept. 1995). For statutory violations, you should undertake a careful review of the various state laws relating to premises maintenance, such as the Multiple Dwelling Law, Building and Fire Prevention Code, Property Maintenance Code, and the local maintenance and building codes for the city, county, town and/or village.
Connection between the defect and fall
The defect or condition that causes the fall must be shown to be a substantial factor in causing the fall. The element of a substantial factor is common to all personal injury claims. In the context of premise liability actions, it requires proof that the condition was the cause of the injury. PJI section 2:90. Ordinarily, proving that the defect or condition was a substantial factor will not be the most challenging element of proof. Proving notice to the landowner is far and away the most difficult part of a premises liability action. If you can establish that your client fell on a condition that the landowner knew about, or created, the landowners negligence in failing to fix the condition or warn of the defect will be enough to establish the cause of the injury. Problems arise when the defect was not in any way related to the fall. For example, stairs at a premise may be lacking handrails required by statute. However, if the client falls on the landing as she is approaching the stairs lacking handrails, there is no annexes between the statutory violation and the fall. In this example, the plaintiff fell before she got to the stairs and therefore the lack of handrails was in no way a factor in her accident. Thus the condition (i.e. lack of handrails) is not the cause of the injury as required by the PJI.
When assessing premises liability cases, keep in mind that these cases do not have strong jury appeal. Anyone who has ever selected a jury on a slip/trip and fall case has experienced the hostility many potential jurors hold toward these causes of action. We have found that even the terms trip and fall or slip and fall bring up negative connotations with jurors. We make every effort to avoid this terminology, preferring instead to use the more generic term, premises liability. Although one may argue that it is best to avoid using legalistic terms during trial, we believe that this is an exception to the general rule. The term shifts the jurors thinking away from the mentality of Its your clients fault, she should watch where she was going because she tripped and fell to what did this property owner do wrong to cause this plaintiff to become injured. Being aware of the difficulties associated with premise liability actions will hopefully assist you in becoming selective in the cases you choose.
