My firm represents personal injury victims involved in all types of accidents, including slip/trip and falls (“premises liability”). In premises liability cases, our goal is to seek compensation for our clients from owners and tenants for defective or dangerous conditions on their property.
Although riddled with nuance and complexity, a basic understanding of the law is critical when analyzing the issue of whether an out-of-possession property owner is responsible for injuries that occur on their property. The general rule is that landowners owe a duty of care to maintain their property in a reasonably safe condition. Henry v. Hamilton Equities, Inc., 34 N.Y.3d 136 (2019). In contrast, a landowner who has transferred possession and control (i.e., an out-of-possession landlord) is generally not responsible for injuries caused by dangerous conditions on the property. Id. at 142.
As is usually the case, there are exceptions to the general rules. “An out-of-possession landlord can be held liable for injuries that occur on its premises if the landlord has retained a degree of control and if the landlord is contractually or statutorily obligated to repair or maintain the premises, or has assumed a duty to repair the premises by virtue of a course of conduct.” Washington-Fraser v. Industrial Home for the Bind, 164 A.D.3d 543 (2nd Dept. 2018). As we travel down the rabbit hole, we find exceptions within the exceptions. For example, “even if a Defendant is considered an out-of-possession landlord who assumed the obligation to make repairs to its property, it cannot be held liable for injuries caused by a defective condition on the property unless it either created the condition or had actual or constructive notice of it.” Id. at 544. A discussion of actual and constructive notice could fill thousands of pages, but essentially it comes down to the concept of whether the owner of the property was aware, or should have been aware, of the defective condition on their property.
Probably most relevant to you, in New York City, the Court of Appeals (the highest court in the state) has ruled that, pursuant to §7-210, of the Administrative Code, out-of-possession property owners have a non- delegable duty to maintain City sidewalks abutting their property in a reasonably safe condition, despite having leased the premises to a lessee that agrees to keep the premises in good repair. See Xiang Fu He v. Troon Management, Inc., 34 N.Y.3d 167 (2019). This means that an out-of-possession landlord is exposed to potential liability for injuries that may occur on sidewalks abutting the property despite an agreement otherwise. Therefore, it is important for out-of-possession landlords to property and carefully oversee its property to ensure that it is maintained in a reasonably safe condition. In the event a defect “slips through the cracks”, pun intended, you now have to think about mitigating your exposure as much as possible.
The key to achieving this goal is through early and thorough investigation of any claims that there are defective conditions on the property. Some traditional methods of investigation include taking photographs of the defect, documenting its size, shape and location, securing and preserving any video surveillance files, and obtaining witness statements. However, in today’s digital age, the internet has become a phenomenal resource in premises liability cases. For instance, Google Maps has become a valuable piece of evidence in determining the exact location of the defect, the surrounding area, and in many cases, the existence of the defect itself.
Countless legal articles and court decisions have explored even these fundamental concepts. As a landowner, it is always best to err on the side of caution and make a concerted effort to maintain your property in a reasonably safe condition. Very often, tenants do not carry insurance policies or allow them to lapse. Consequently, attorneys strive to develop a theory of liability against the owner of the property whether they are in-possession or out-of-possession. Even though no one can guarantee absolute safety, there are certain precautions that should be taken to avoid time and expense of finding yourself in the courtroom as a defendant. The moral of the story is: try to keep your property reasonable safe; try and make sure your lease agreement clearly delineates who is responsible for which portions of the property; and make sure you have liability insurance!
If you or a loved one has been injured in a slip/trip and fall accident, contact the premier personal injury law firm of Rosner Russo Shahabian PLLC. Our team of attorneys will expertly, empathetically and aggressively fight for what you deserve. To schedule a free and confidential consultation today, call (516) 376-0000.
*For educational and informational purposes only, and not as a substitute for legal advice.