Premises Liability

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Generally speaking, the owner of property has a legal obligation to maintain that property in a safe and reasonable manner.  Safe and reasonable can mean many different things, of course, but when an owner fails to properly maintain a piece of property, and someone is injured, the injured party may have the right to bring a claim or a lawsuit for premises liability.

Premises Liability Cases

New York State Law requires that an owner of property keep that property safe for guests and expected users.  The failure to maintain the property in a safe way can be considered negligence – or the failure to act with reasonable care. 

Generally, courts in New York require a showing that the owner of the property actually created the dangerous condition on the property, or that it had existed long enough that the owner either knew, or should have known about it and repaired it.  This is called notice, and when a property owner has notice of a dangerous condition on a property, and fails to remedy it, they may be considered negligent.

New York State law does, however, allow for consideration of the negligence of other parties, including the injured party.  So, for example, if someone trips on a pipe that was right in front of them, a court or jury could determine that the owner of the property was 50% at fault for having failed to move the pipe, and that the injured party was also 50% at fault for not seeing the pipe or walking around it.  This is called contributory negligence, and in this case any award that the injured party received would be reduced by 50%.

Common Types of Premises Liability Accidents

  • Slip and fall on snow or ice: probably the most common form of premises liability in New York – particularly upstate New York, in the slip and fall case the injured party must establish that the owner of the property knew of the existence of snow or ice, and failed to remove or care for it within a reasonable time. 

During a snowstorm owners are generally relieved of the obligation to immediately clear snow or ice from sidewalks, driveways, etc.  This is called the “storm in progress” theory.  However, once the storm has subsided the owner is obligated to take measures to clear the walkways.  If the owner fails to do so, or makes things worse by poorly clearing the property, and someone falls, the owner may be liable for negligence. 

Homeowners insurance typically protects property owners when someone is injured because of a slip and fall on snow or ice, so injured parties are generally able to recover where there has been negligence on the part of the property owner.

  • Trip and fall: similar to a fall on snow or ice, in a trip and fall case a party is injured because of some tripping hazard on a property that has either been created by a property owner or otherwise ignored.  A common example of this is a sidewalk that is left in disrepair by the property owner for some period.  If/when some individual walks by and trips and falls, the property owner may be held responsible because of their failure to fix the condition that they were aware of.
  • Injury from a dangerous condition on the property: these injuries can be caused by things such as lose items falling from a roof; nails left on property following construction; stairs left in disrepair or other household dangers that can be common.  When a property owner ignores or fails to remedy these dangerous conditions, and a guest is injured, the homeowner may be responsible for negligence.
  • Fires: where an individual is injured or killed because of a fire that was caused by the negligence of the property owner, they or their estate may be able to recover.  This can occur where the owner left a candle burning, ignored an electrical problem, or left a match somewhere that caused a fire.
  • Attacks by people: where an individual is injured or killed by an attack from another person, the owner of the property where the attack took place may be held responsible if they were aware of the danger presented by the person, or if they reasonably could have been aware of the danger.  This could apply in cases where an individual was attacked by a child of a property owner who had a history of violent behavior, or where a property owner failed to take measures to ensure that property was protected from dangerous intruders, such as in an apartment complex.
  • Animal Attacks: individuals may recover for injures from attacks by domestic animals where the owner of the animal was aware of the vicious propensities of the animal and failed to take steps to ensure that it did not cause harm.  More about animal attacks here.

Some Notice is Often Required

It is important to remember that in most cases the homeowner need not have been actually aware of the existence of the dangerous condition that caused the injury.  It is often enough for the injured person to show that the condition existed long enough that the homeowner should have been aware of the condition and taken steps to remedy it.

Damages in Premises Liability Cases

Individuals injured because of the failure of a property owner to maintain property are entitled to an award of damages to compensate them.  Very often serious injuries are sustained in a property accident, for which the victim is entitled to be compensated.  There are several categories of damages available.

  • Pain and Suffering

These damages are meant to compensate the injured person for the physical injuries that they have suffered from the accident.  This includes pain from broken bones or other medical injuries including surgeries and, in the worst-case, pain and suffering through death. 

Pain and suffering damages are generally broken down into two categories: past and future.  Past pain and suffering damages are awarded to an individual for the pain and suffering that she has suffered from the date of the accident to the date of the award.  Future pain and suffering damages are meant to ensure that the individual will be compensated for the pain and suffering she will suffer in the future, which can often mean the rest of her life. 

  • Mental Anguish or emotional distress

Victims of property accidents are entitled to recover for the mental anguish from the accident.  In many cases involving property accidents this will include flashbacks of the accident, among other things including depression and anxiety from the accident.  As with pain and suffering, mental anguish damages are broken down into damages for the past, and damages into the future.

  • Medical Expenses

One who has been injured in a property accident because of the negligence of the owner is entitled to an award for any paid and future medical expenses associated with the injury.  This often includes medical bills, hospital treatments and follow up care, and can also include things such as wheelchairs and future medical devices or modifications to the home such as installation of ramps.

  • Loss of Income or wages

When someone is injured because of negligence of a property owner, serious injuries often result.  These injuries often lead to the inability of the individual to work, occasionally for long periods of time.  This is particularly true in cases involving a head injury or traumatic brain injury, which is unfortunately all too common in accidents. 

When an accident victim is unable to work, she is entitled to be compensated both for her lost wages to date, as well as for her lost wages or earning capacity into the future for as long as she can be expected to be out of work.  In cases involving head injuries or traumatic brain injuries following a property accident this can be significant.

  • Funeral expenses

In the event that an individual is killed because of a property accident, their Estate is entitled to recover for the loss, which includes funeral expenses. 

  • Punitive Damages

Punitive damages are meant to punish a wrongdoer, and in many cases to set an example to society that the conduct was so wrong that we will punish the person for having acted that way.  Punitive damages are discretionary, and are generally only awarded in the most extreme cases involving severely egregious acts by the wrongdoer that border on intentional. 

At the present time, New York State does not cap damage awards in accidents that occur on property.  This means that an individual is entitled to be compensated for the full amount of their damages, less any reduction for their own fault in causing the accident. 

New York Personal Injury Attorneys

An injury from a property accident can be devastating to a family.  Bills, inability to work and mental anguish can be overwhelming.  We deal with families in distress, and are happy to help you get through this difficult time.  Contact us today. Or, for an immediate confidential case evaluation, complete our online questionnaire here.

A Case Example

The mid-level appeals court in New York (the Appellate Division Third Department) issued a favorable decision for our slip and fall client in Drake v. Sagbolt, LLC, 112 A.D.3d 1132 (3d Dep't 2013) (Giovanna A. D'Orazio, argued). In this case, our client slipped and fell on an icy walkway which had not been cleared or closed for the winter. The defendant argued that the property itself was closed for the winter, but there were no signs or barriers which would have alerted a member of the public that they were not permitted to enter the premises. The Court agreed with our argument that the defendant had a duty to warn of hidden dangers or to adequately close the property. After this favorable decision, we were able to secure a favorable settlement for our client.

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Have you been injured at a job site, or in a vehicle? D’Orazio Peterson is an experienced Personal Injury law firm. If you have experienced serious injury due to negligence or malice, be sure to contact us to see what we can do to help you receive the justice you deserve.

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