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A New Duty of Care for Property Owners

Jay Hollander, Esq. is the principal of Hollander and Company LLC,, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.

The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.

For some time, it's been the law in many parts of New York State that a landowner had no duty to warn visitors of an obvious and readily observable hazard. The idea was that a person of normal intelligence can see an obvious danger and will avoid it.

However, two recent appellate decisions, while generally confirming that rule, have established a new one, that landowners can't fail to address a hazardous condition that they are responsible for just because it's obvious. It is part of a statewide and a nationwide trend away from relieving landlords and others in control of a property from liability for obvious dangers on that property.

In each of these cases, the plaintiff brought an action to recover for injuries sustained due to conditions that were either readily observable or actually known to exist by the Plaintiff.

In MacDonald v. City of Schenectady, the claimant tripped on a crack in a sidewalk that she had walked on daily for over a month and that had been in need of repair since the city removed a tree stump six years prior to the accident.

In Cupo v. Karfunkel, a Federal Express worker suffered injuries when the front wheel of an hydraulic lift caught in a depressed area of a sidewalk on a public street outside a property, causing the lift to overturn, throwing the employee to the ground.

In each of these cases, the property owner moved for dismissal of the case, disclaiming either a duty to warn the victim of the condition or a duty to repair, based on a principle that had been accepted by the courts for years, namely, that there are no such duties to warn or repair when the allegedly dangerous condition was open and readily observable by the victim.

In both cases, however, the courts departed from previous precedent in a Solomonic fashion, generally upholding the exception from a duty to warn, but allowing for the imposition of a duty to correct even open and readily observable conditions to the extent that it can be established that the condition was inherently dangerous.

For example, in MacDonald, the appellate panel said that, while there is no duty to warn, there is a separate and broader duty of care, a duty to maintain one’s property in a reasonably safe condition.

According to the MacDonald court, while the open and obvious defense, as applied to the duty to warn, is based on the rationale that obvious dangers themselves warn of their own condition, the same rationale simply does not hold true with respect to a landowner's more general duty to maintain its property in a reasonably safe condition. Otherwise, the Court reasoned, a landowner could forever fail to fix even an extremely hazardous condition, no matter how likely it might be that injuries would result, simply by virtue of the fact that it is obvious and apparent to onlookers.

The Cupo Court expressed agreement with the reasoning in MacDonald and held that, regardless of any duty to warn of dangerous conditions on the property, a landowner has a separate duty to keep the property in a reasonably safe condition for those who use it.

Yet, despite these two decisions, reversing years of precedent absolving property owners of a duty to repair open and readily observable conditions, the reversal is not without limits.

First, while both courts held that the open and notorious nature of the condition did not automatically absolve the property owner of liability to repair, both held it would be relevant to a finding of “comparative negligence”, a legal theory under which a certain portion of the fault could be attributed to the victims who could have – or should have – avoided some or all of the damage themselves.

Second, the fact that an owner cannot absolutely escape liability stemming from a readily observable dangerous condition is not the same as saying that the landowner is always liable for accidents caused by any open condition.

For example, the Cupo Court noted that:

“...we do not suggest that a court is precluded from [finding for ]a landowner on the ground that the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous”

In other words, while the open nature of the condition doesn’t allow an owner to disavow liability, it doesn’t, alone, create liability either, since the condition must still be one that the land owner has a responsibility to remedy in the first place.

Still, the MacDonald and Cupo cases are important, not only because they reverse longstanding interpretations, but because they are recent examples of a clear trend in the country as whole toward holding landowners responsible for reasonably maintaining their property, even when it comes to obvious dangerous conditions.

In short, warning of an openly dangerous condition is not necessarily required, but even where it’s not, liability to repair or maintain may still be found, and obviousness is no defense to this duty. So assess any dangerous conditions on any property you own or are responsible for and deal with them, based on your assessment.

So, assess your particular situation. It’s up to you to evaluate and address any hazards to a reasonable degree. Use common sense, but do it with your attorney. It may save you from ending up the losing party defendant in a personal injury lawsuit.

Copyright © Jay Hollander, 2007. All Rights Reserved.

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