In order to hold a property owner liable for injuries, plaintiffs must prove that the owner was negligent, failing to use appropriate care in maintaining the premises. Demonstrating that a hazard, however serious, existed on the property isn’t enough, although it is necessary. Beyond the existence of dangerous conditions, victims have to show that the property owner knew or should have known about the hazard, but failed to correct it appropriately.
In this context, “failure” can mean several things:
- the property owner failed to guard against foreseeable and preventable sources of harm, like an apartment owner who fails to hire appropriate security in a high-crime neighborhood
- the property owner failed to fix a known hazard
- the property owner attempted to fix a hazard, but the attempted repair was unreasonable and insufficient or only made the danger worse
- the property owner failed to warn guests adequately of a non-obvious hazard
As we can see, the determination of negligence often comes down to what would have been “reasonable” in similar circumstances. Thus a Court’s determination normally comes down to what we could reasonably expect a similar property owner to have done about the hazard.
Notice Of Hazard Is Required
In any event, property owners cannot be held liable for injuries unless they:
- created the dangerous conditions themselves, or
- had actual or constructive notice of the condition
In short, property owners cannot be found responsible for dangerous conditions that they don’t know about. New York’s Courts, however, use a different standard of “knowledge” than we would use in common speech.
Actual vs. Constructive Notice
We’re all familiar with the concept of “actual notice.” A property owner has actual notice of a hazard if they actually know about the hazard. It’s entirely possible that the owner of a convenience store would observe dangerous conditions, but do nothing to fix them. That would constitute actual notice.
Constructive notice, on the other hand, is more about what a reasonable person should know, given certain facts. In a high-crime neighborhood, for example, a reasonable apartment owner would probably institute heightened security measures. Even if the apartment owner doesn’t know that a specific crime is about to take place, we would expect them to understand that similar crimes are entirely possible, if not likely, to occur. Under these circumstances, instituting adequate security measures would be entirely reasonable, and the property owner could be held accountable for failing to do so.
The theory of constructive notice provides another wrinkle. Let’s say that a bottle of tomato sauce falls of the shelf in a supermarket and breaks, creating a dangerous slip and fall hazard. The supermarket’s employees, though, don’t notice the dangerous conditions and leave the tomato sauce on the floor for hours. That’s certainly enough time for a reasonable employee to notice the hazard and correct it. As a result, the store could be held accountable for failing to correct the problem, even though none of its employees had actual notice of the dangerous hazard.
Who Is Responsible For Sidewalks In Manhattan?
Most public property in New York is maintained by a governmental agency. Subways, for example, are owned by the City of New York and leased for operation to the New York City Transit Authority. The Transit Authority is itself a subsidiary department within the Metropolitan Transportation Authority (MTA), an agency run by the State. While it’s possible to sue governmental agencies like the MTA over a serious injury, it is extremely difficult. State and City organizations enjoy considerable legal protections that private citizens or business owners don’t. There are different time limits, which are extremely strict, along with a separate burden of proof in cases of municipal liability.
Sidewalks are a different story. Instead of falling to a State or City authority, liability for injuries related to poorly-maintained sidewalks passes on to adjacent property owners. In other words, every property owner in New York City is responsible for maintaining the sidewalk outside of their property. This responsibility holds for business owners, just as it holds for the owners of residences. As the New York City Administrative Code clearly states:
“the owner of real property abutting any sidewalk, including, but not limited to, the intersection quadrant for corner property, shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition.”
Property owners are obligated to repair cracked paving stones, although most Courts will take the obviousness of a hazard into account to determine liability. Pedestrians have their own responsibilities, too, which include using reasonable care in protecting their own safety while walking.
Do Trespassers Have Legal Rights?
In the past, most state courts observed a contrast between three types of people who could set foot on a property:
The first group of people, invitees, are invited onto the property, either explicitly or implicitly. Customers who intend to shop at a local business (implicit invitation) and social guests in the home (explicit invitation) are two examples. Invitees are allowed onto a property and enter with the property owner’s permission. Trespassers, on the other hand, set foot on a property against the owner’s wishes, as unauthorized intruders. A third classification of people, licensees, fit somewhere between trespassers and invitees. There aren’t many licensees in New York anymore; the definition was created to encompass traveling salespeople, who could be invited into private homes but were invited for their own purposes.
Yes, Even Trespassers Can Sue In The Event Of Injury
Why is all this nuance important? Until recently, most states would gauge what kind of duty of care a property owner owed to his or her guests depending on which kind of guests they happened to be. Invitees were owed a strong duty of care and licensees were owed an intermediate duty of care. Trespassers, though, were entitled to no rights in this context. Trespassers entered properties at their own risk and would have no recourse for compensation in the event of suffering an injury.
The majority of states, including New York, have now moved away from these distinctions, affording trespassers the same degree of legal consideration that invitees and licensees enjoy. In short, property owners in Manhattan can be held accountable for breaching their duty of care, even if the person injured was trespassing on their property. Instead of focusing on the trespasser’s status as an unwelcome intruder, Courts in New York now turn their attention to the reasonableness of the property owner’s conduct and the foreseeability of the trespasser’s presence.
Third-Party Premises Liability
Recent changes in Court interpretations of the common law have also broadened the scope of property owner premises liability. In the past, the theories underpinning premises liability were used almost exclusively in cases involving injuries caused by building and property hazards. These lawsuits are still extremely common. In fact, injuries related to snow and ice in parking lots may be the leading driver of personal injury litigation in New York City.
But premises liability has now expanded to include litigation arising from the wrongful misconduct of third-parties, including criminal actions committed by other guests on a property owner’s premises.
Let’s take negligent security lawsuits as one illuminating example of this shift. Apartment owners have a duty to residents, along with non-resident visitors, to maintain adequately safe premises. This duty of care includes the maintenance of adequate safety measures, including door locks, proper lighting and fencing around the property if necessary.
These safety measures are intended to protect residents and visitors to the property from criminal intruders. In the event of an assault, murder or robbery, some victims may be able to pursue compensation from the property owner, if it can be demonstrated that the owner’s efforts to secure the premises were insufficient and negligent. This liability is not automatic. In most cases, a victim will have to show that the property owner ignored a history of similar criminal activities in the area or, alternatively, failed to use reasonable diligence in their attempts to discover whether or not a history of similar criminal activities had occurred in the area.
Victims of crime are also allowed to sue the perpetrators of a criminal act in civil court, but locating the wrongdoer can be difficult. Negligent security cases, which are filed against property owners, can thus serve as a necessary source of compensation for injuries and emotional trauma. Even though the property owner did not directly cause the victim’s injuries or death, he or she can be held responsible for allowing the criminal activity to occur, by failing to provide adequate security.
Contributory Negligence vs. Comparative Fault
Historically, negligent property owners had an extremely effective defense to fend off premises liability lawsuits. If the owner could show that the injury victim’s own actions (or failures to act) had contributed to the accident in any way, the property owner could avoid all liability. This legal framework, known as “pure contributory negligence,” absolved property owners of all responsible, even if their own negligence had contributed to the victim’s injuries in a significant way.
Today, only five states, along with the District of Columbia, continue to follow the rubric of pure contributory negligence. In place of that legal theory, New York has established a system of “comparative negligence,” in which fault for an accident can be shared among the participants. Comparative negligence recognizes that plaintiffs may still be entitled to compensation, even though their own actions contributed to the accident in some way. In practice, comparative negligence instructs a Court to reduce the amount of compensation awarded to an injury victim in proportion to their own share of fault.
How Is Pure Comparative Fault Calculated?
Let’s say Peter and Margaret are involved in a car accident. Margaret sustains severe injuries, running up medical bills that amount to $60,000, and promptly sues Peter for damages. At trial, the jury determines that Margaret has suffered $100,000 worth of damages, including an additional $40,000 that would cover her lost wages and pain and suffering. The jury also determines, however, that Margaret herself was negligent, calculating that Margaret’s own carelessness was responsible for 40% of the accident. In New York, Margaret’s damages would be reduced by 40%, leaving her with an award of $60,000.
New York’s system of comparative fault is considered “pure,” because it extends to accidents in which the plaintiff is found to have contributed to more of the accident than the defendant. If, for example, the jury had determined that Margaret was 99% responsible for her injuries, she would still be awarded compensation, but only 1% of the calculated injuries.
Most states, in contrast to New York, use “modified” comparative fault systems. In these systems, whether or not a plaintiff receives compensation is contingent on their percentage of fault. In Arkansas, for example, a plaintiff won’t be entitled to any award if a judge or jury finds that they were responsible for 50% or more of the accident. If the plaintiff’s responsibility is below 50%, the comparative fault mechanism will kick in, reducing the plaintiff’s damages by their percentage of responsibility.
Is There A Deadline For Slip & Fall Lawsuits?
Every state has established a set of laws, known as “statutes of limitation,” that controls the amount of time injury victims are allowed to file personal injury lawsuits. New York is no different. In Manhattan, Section 214 of New York’s Civil Practice Law and Rules governs nearly all legal claims involving the legal theory of premises liability, from slip and fall lawsuits to dog bite claims.
Section 214 provides victims up to 3 years, beginning on the date of their accident, to file a civil lawsuit for damages. Complying with this deadline is critical. The vast majority of Courts in New York will dismiss cases filed after the statute of limitations has elapsed without a second thought.
Toxic Tort Time Limits
There’s really only one notable exception to this 3-year statute of limitations, at least where premises liability lawsuits are concerned.
We’ve already seen that some property owners can be held accountable for allowing residents to be exposed to harmful substances, like lead paint or radon. These kinds of cases, known as “toxic torts,” are governed by the same statute of limitations as almost every other personal injury lawsuit – with one big difference. When an individual suffers injury, or develops a serious medical condition, due to the “latent effects of exposure” to a substance, they have 3 years beginning on the date of discovery to file suit against the responsible property owner.
This “discovery rule” sets the statute of limitations running when the victim first learns (or should have learned through reasonable diligence) that their illness or injury may be connected to environmental exposure.