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Hollander and Company LLC
5 Penn Plaza
19th Floor
New York, NY 10001
Telephone: (212) 576-1061
Facsimile: (212) 576-1078
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A New Duty of Care for Property Owners

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.



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We have been very fortunate to be represented by Hollander and Company LLC when it came time to trademark our company name. Their attention to detail was useful to us in helping clarify exactly what it was we were doing and what to expect. Also Jay Hollander was always sure to keep us up to date on what was happening. In this day when you hear horror stories about attorneys never following up it's good to know you've got someone on your team that you can trust.
Dan Cashman

Mr. Hollander consistently worked with my interests in mind, and often juggled his calendar around to accommodate meetings. He checks his email, voicemail, and responds during hours when most attorneys wouldn’t.
Jerry Revich

I would like to thank you personally for the excellnt Lan Management contract review, which you recently completed for us. It brought to light many issues that might have gone unnoticed if we had taken the path we pursued on a prior software management agreement. In today's Software and Services market it is imperative that the right Legal firm with the right experience review your contract before you sign on the dotted line. In closing I would like to say I really appreciated your efforts and attention to detail.
Michael A. Ritholz - Data Processing Manager - Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C.

Your thoroughness and diligence in preparing for the closing made it a breeze for me. In addition, your kindness, respectful nature and sense of humor made it all enjoyable.
Laurie J. Harrison

Thank you so much for taking on my co-op purchase. As a first time buyer, there was no limit to how much about the process I did not understand. The patient guidance afforded to me by Hollander and Company LLC helped enormously. I am sincerely grateful for your diligence and smarts applied on my behalf. I will be more than happy to recommend your services to anyone looking for assistance in this area.
Andrew Maskin

I wanted to thank you and your firm for handling the sale of my property... I don't think the sale would have gone through without you and your firm's help.
Lisa Conway, Sales Agent, Halstead Property Company

The quality of your work and your personal and professional dedication really do make a difference.
David J. Pitkoff - CFO - Jason Maxwell, Ltd.

You provided great communication every step of the way to be sure that we were aware of what was going on.
Scott A. Anderson - IT Director -Hollander Home Fashions Corporation.

Your insight and expertise were invaluable in putting together the appropriate contracts and negotiating the optimum financing for our company.
Carl Bachmann - President - Veterans First Financial Services, Inc.

I knew nothing about Internet law, but after our first meeting I felt at ease as Jay explained it in a manner that any person could understand.
Gregory Edson - President - Cityopoly Inc.

The unique insight that you have been able to provide into the world of internet law has enabled us to position ourselves at the leading edge of the email follow-up and marketing industries.
Tracy R. Byrne - Vice Presidetlt, CMO - Electrisoft Corporation

Jay Hollander was great about explaining exactly what needed to be done in setting up our corporate structure and shareholder agreement, as well as how to craft contract language that would protect our interests in the future.
Nicolas Richards - President & CEO - MedAbiliti Software Inc.

Jay provides us with full legal services. He has represented us in complex bankruptcy issues, commercial office and store leasing and litigation.
David Ritter - Kensington House Company