Kevin G. Faley and Andrea M. Alonso
*Originally published in the
New York Law Journal
June 11, 2012
The New York Pattern Jury Instructions (PJI) contain a number of provisions related to premises liability. The pertinent sections of the PJI define the duty of care that is required of the parties and will be read by the judge during his charge to the jury. Given the breadth of scenarios covered by the PJI, there is likely to be a relevant charge in most premises liability cases. Plaintiff and defense counsel have a duty to scour the PJI in search of the relevant provisions, and the proper use of the PJI can lead to favorable verdicts.
The PJI for premises liability is divided into the duties owed to persons "on the land" and to persons "outside the land."
Persons on the Land
Sections 2:90 through 2:108 of the PJI detail the duties owed to persons "on the land," such as tenants or inhabitants of the property. The sections are divided into three topics: possessor's liability, lessor's liability and vendor's liability.
Section 2:90 outlines the standard of care applicable to a possessor's liability for the condition or use of the premises. A plaintiff must prove three elements in order to recover: (1) that the premises were not reasonably safe; (2) that the defendant was negligent in not keeping the premises in a reasonably safe condition; and (3) that defendant's negligence in allowing the unsafe condition to exist was a substantial factor in causing the injury. Contrary to common belief or misconception, the duty owed is not dependent on plaintiff's status as an invitee, licensee, or trespasser. There is a duty to maintain property in a reasonably safe condition regardless of whether the property is public or not.1
Section 2:91 of the PJI covers possessor's liability in slip and fall cases. The elements of proving liability are the same as previously stated, that is, that the property was not reasonably safe due to the defendant's negligence and that the defendant's negligence was a substantial factor in causing the injury. There is no duty to warn of unsafe conditions that are open and obvious. An act is considered a substantial factor in causing the injury if "a reasonable person would regard the act or failure to act as a cause of the injury." Additionally, the defect must be the proximate cause of the injury; however, where there are several unsafe conditions, the plaintiff need not prove which condition caused the injury so long as it is reasonable to infer one of the defects caused the injury.
Under Sections 2:100 and 2:101 of the PJI, lessor's liability in private and public places is outlined. Any dangerous condition on the premises that exists when a tenant is given possession of the property must be disclosed. The lessor is required to do so when he knows or has reason to know of the dangerous condition, and that by means of reasonable inspection it would not be discoverable. These provisions cannot be limited contractually as agreements that exempt the lessor for negligence are per se invalid.2
The duty to warn of dangerous conditions applies to tenants and persons whose presence is reasonably foreseeable.3 However, there is no duty imposed upon the lessor to protect a tenant from the conduct of another tenant if the lessor cannot control the conduct of the tenant.4
Generally, a lessor does have a duty to use minimal security if criminal intrusion is foreseeable.5 Previous criminal activity on the premises is relevant in determining whether or not criminal conduct is foreseeable, but it must be of a similar nature to the criminal activity in question. Thus, a previous criminal history of car theft in a neighborhood has no bearing on a shooting or a sexual assault.
A duty on the part of the landowner remains even when the property is leased for the purpose of inviting the public.6 The duty is the same as in the private setting—reasonable care must be used to inspect and repair the premises to prevent any unreasonable risk of harm before turning over the land. The general rule is that an owner who relinquishes control is not liable for subsequent injuries.7 However, when the lessor knows or should have known that the premises are in a dangerous condition at the time of the lease, then liability will be imposed.
The duty on the lessee to inspect the property is imposed by law, and therefore the tenant accepts the property "as is." Thus, defects arising after the transfer of possession will not impose liability on the lessor.8 Agreements that exempt the lessor from liability for negligence are invalid.9
Section 2:105 of the PJI governs the lessor's liability when the lessor retains control. If there are portions of a premise that the lessor controls but the tenant may use, a duty is imposed on the lessor to keep those areas in a safe condition. The burden falls on the plaintiff to show that the plaintiff was injured on a part of the premises over which the lessor had control. Four things are considered when determining if the defendant retained control over the portion of land where the plaintiff was injured: first, provisions of the lease relating to that portion of land; second, provisions of the lease regarding repairs; third, whether a doorman or guard was employed; and fourth, whether after the injury an investigation and/or repair was done. It is important to distinguish that repairs made after an injury can only be used to establish control of the property, not negligence.10
Under Section 2:108 of the PJI, a seller is liable to someone injured on the property after the buyer takes possession if "at the time of the transfer (1) a dangerous condition existed, (2) the seller either knew about the condition or knew of facts or circumstances from which a reasonable person would conclude that such a condition existed and did not tell the buyer about it, and (3) the condition was not known to or discoverable by the buyer through the use of reasonable care."
However, a seller is no longer liable if the buyer has a reasonable opportunity to discover a defective condition and repair it, but fails to do so. Reasonable opportunity is considered from the closing of title, not the contract date.11 Factors considered when determining reasonableness include the "nature of the condition, the manner in which the buyer uses the land, and the time elapsed from the sale."12
Section 2:108 of the PJI codifies an exception to the general rule that after transfer of property the seller's responsibility for injury ends.13 The exception states that a seller may be liable after transfer of property if he knew of a dangerous condition, did not tell the buyer and the buyer could not have discovered the condition through reasonable care. A seller may obtain summary judgment if there is no evidence that he/she created or concealed a dangerous condition.14
Persons Outside the Land
The Pattern Jury Instructions in Sections 2:110 through 2:112 detail liability to persons outside the land. Three elements must be satisfied for a jury to find liability on the part of an owner of a piece of land or a building. First, the land or building must have been in a condition that was dangerous to people on the adjoining property. Second, the owner must have known or should have discovered the condition and had a reasonable opportunity to correct it. Third, the condition must have been a substantial factor in causing the plaintiff's injury.
Injuries on sidewalks involving trees are often the cause of much litigation. However, if there is no statute or local ordinance in place, then under common law the owner of the property adjacent to the sidewalk does not owe a duty to repair a sidewalk defect caused by a tree, unless the defect was due to a special use of the sidewalk.15 Building owners owe a duty to ensure the maintenance of their building poses no potential injury to pedestrians on the adjacent sidewalk.16 This duty is not delegable.
Section 2:111 of the PJI discusses the possessor's liability to persons using the sidewalk. Generally, the municipality is responsible for maintaining the condition of sidewalks. However, if the owner uses the sidewalk for his own benefit—a special use—the owner assumes responsibility and is liable for that portion of the sidewalk.
To prevail, the plaintiff must prove four elements: "(1) a dangerous condition existed on the portion of the sidewalk put to defendant's special use, (2) defendant's special use created or contributed to the dangerous condition, (3) defendant either knew about or in the use of reasonable care should have discovered the condition and had a reasonable opportunity to correct it, and (4) the condition was a substantial factor in causing plaintiff's injury."
The issue of proximate cause between the special use and the defective condition causing injury is an issue of fact that typically precludes summary judgment.17 One example of special use would be a driveway constructed across the sidewalk; this would impose liability on the landowner who constructed the driveway.18 If a landowner chooses to repair a sidewalk but does so negligently, the landowner may be liable to persons injured on the sidewalk.19
Finally, if a local law or a statute requires maintenance of a sidewalk, then liability will be imposed on the abutting landowner.20 In New York City, Administrative Code 7-210 imposes a duty on the owner of property of the abutting sidewalk to maintain the sidewalk in a reasonably safe condition, including making necessary repairs, and will be liable for any injuries proximately caused by the negligent maintenance of the sidewalks.21 Maintaining a sidewalk in a reasonably safe condition includes installing or repairing defective sidewalk parts and removing snow and ice.
As construction is extremely prevalent in New York, it is important that attorneys pay attention to PJI 2:112 which addresses abnormally dangerous conduct, such as blasting, excavating, hydraulic dredging and land filling. When a defendant engages in conduct that involves a risk of harm to others, the owner or contractor who engages in the conduct is responsible for any injury to person or property caused by the activity. Absolute liability is imposed regardless of fault. A jury must decide two issues: first, whether the defendant actually engaged in the dangerous activity; and, second, whether the activity was a substantial factor in the plaintiff's injury. This rule was recently reaffirmed by the New York State Court of Appeals.22
Conclusion
When involved in litigation stemming from a premises liability accident in New York, counsel for both sides should be thorough in their review of the applicable sections of the PJI. The PJI covers a wide range of scenarios, includes a number of examples and often points directly to the governing laws. At trial, the PJI can be an effective tool for both sides if counsel is well versed in all the scenarios that it covers.
Kevin G. Faley and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley. Bradley Small, a paralegal, assisted in the preparation of the article.
Endnotes:
1. See Peralta v. Henriquez, 100 N.Y.2d 139 (2003).
2. N.Y. G.O.L. §5-321.
3. See Basso v. Miller, 40 N.Y.2d 233 (1976).
4. See Britt v. New York City Housing Authority, 3 A.D.3d 515 (2d Dept. 2004).
5. See Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875
6. N.Y. Pattern Jury Instr.—Civil 2:101.
7. See June v. Bill Zikakis Chevrolet Inc., 199 A.D.2d 907 (3d Dept. 2003).
8. See Schlesinger v. Rockefeller Center, Inc., 119 A.D.2d 462 (1st Dept. 1986); Inverso v. Whitestone Transit Mix Corp., 30 A.D.2d 565 (2d Dept. 1968).
9. See N.Y. G.O.L. §5-321.
10. See Comment to N.Y. Pattern Jury Instr.—Civil 1:65.
11. See Farragher v. New York, 275 N.Y.S. 2d 542 (1st Dept. 1966).
12. See Rest. Second, Torts 353.
13. See Bittrolff v. Ho's Dev. Corp., 77 N.Y.2d 896 (1991).
14. See Matthews v. Tobias, 688 N.Y.S.2d 677 (2d Dept. 1999).
15. See Taubenfeld v. Starbucks Corp., 851 N.Y.S.2d 512 (1st Dept. 2008).
16. See Kopinska v. Metal Bright Maintenance Co., Inc., 766 N.Y.S.2d 21 (1st Dept. 2003).
17. See Granville v. New York, 627 N.Y.S.2d 4 (1st Dept. 1995).
18. See Torres v. New York, 820 N.Y.S.2d 268 (1st Dept. 2006).
19. See Fraser v. Fertig, 676 N.Y.S.2d 201 (2d Dept. 1998).
20. See Willis v. Parker, 225 N.Y. 159 (1919).
21. See NYC Admin. Code 7-210.
22. Yenem Corp. v. 28 Broadway Holdings, 2012 NY Slip Op. 01096 (2012).