New York Premises/Property Liability Attorneys
Generally speaking, the owner of property has a legal obligation to maintain that property in a safe and reasonable condition. Safe and reasonable can mean many different things, of course, but when an owner fails to properly maintain his or her 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
The failure to maintain your property in a reasonably safe condition under the circumstance can give rise to a lawsuit for negligence.
Generally, courts in New York require a showing that the owner of the property actually created the dangerous condition on the property, actually knew that the dangerous condition existed (“actual notice”) or that the dangerous condition existed for a long enough period of time that the owner either knew, or should have known, about it and repaired it (“constructive notice”). When a property owner has notice of a dangerous condition on his or her property, and fails to remedy it, the property owner may be 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 comparative fault or comparative 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 this type of 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 otherwise treat 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” doctrine. 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.
Homeowner's 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 where the owner knew or should have known of the existence of the hazard but did nothing. A common example of this is a sidewalk that is left in disrepair by the property owner for some period. If/when an individual walks by and trips and falls, the property owner may be held responsible because of his or her failure to fix the condition that they were aware of or that existed for a sufficient period of time that they should have been aware of it.
- Dangerous condition on the property: this category is basically a catch-all for any dangerous condition on the property that causes harm. Some examples may include loose 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 an individual on the property is injured, the homeowner may be liable for negligence.
- Fires: where an individual is injured or killed because of a fire that was caused by the negligence of the property owner, he or she (or the 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 in an attack by 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 should 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: New York is a strict liability state when it comes to attacks by domestic animals. This means that, if an individual is injured by an animal and the owner of the animal knew or should have known that the animal is dangerous, the owner is liable even in the absence of negligent. More about animal attacks here.
Liability in Premises Cases
Negligence cases require both a duty and breach of that duty. Landowners have a duty to maintain their premises in a reasonable safe condition. But dangerous conditions are not always going to give rise to a claim for negligence.
Some Notice is Generally Required
Unless the property owner actually created the dangerous condition, a premises liability case requires some notice. Either actual notice – meaning literally that the owner actually knew about the dangerous condition – or constructive notice, meaning that the dangerous condition existed for a long enough period of time for the owner to have discovered and remedied it. Constructive notice essentially means that the owner “should have known” as opposed to “actually knew.”
The Landowner Must Breach its Duty
Once an owner knows or should know of a dangerous condition, the question is whether the landowner did enough to fulfill its duty to deal with the situation and maintain its property in a safe condition. When the landowner does absolutely nothing, we have a better argument that it breached its duty of care, unless what we are claiming the landowner should have done is completely beyond the scope of its duty. For example, some cases will not impose an obligation on a landowner to fully light an area of its property even if theoretically the darkness could pose a danger. When the landowner has undertaken some efforts to remedy a dangerous condition, the argument also may become more difficult. For example, you slipped on ice but the landowner had salted the area. It may be that this was sufficient to meet the landowner's duty. It all depends on the specific facts of the case.
Damages in Premises Liability Cases
Individuals injured because of the failure of a property owner to maintain its property are entitled to an award of damages to compensate them. Very often serious injuries are sustained in a property accident, and an injured person is entitled to be compensated for injuries resulting from the property owner's negligence. 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 he or 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 suffered as a result of the accident. This can include flashbacks, depression and anxiety, Post Traumatic Stress Disorder or any other emotional distress that is related to 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
An individual 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, he or she is entitled to be compensated both for lost wages to date, as well as for lost wages or earning capacity into the future for as long as he or 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, his or her 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. It is unlikely that punitive damages would be recoverable in a premises liability case.
- Loss of Services, Society and Companionship and Wrongful Death
The spouse of an injured person is entitled to bring a separate claim for the loss of services, society and companionship of the injured person. So, if your injury results in your inability to fully participate in your marriage (including from a sexual relationship standpoint) or to perform household duties, that is an item of damages that can be recovered by your spouse.
If the injured party dies, and his or her surviving spouse or dependents suffer a financial loss because of the death (the most common example being a spouse supporting the other spouse and children), that loss of financial support is compensable as part of a wrongful death claim. The pain and suffering or other damages sustained by the individual prior to his or her death would also be recoverable in the same action in what we refer to as the “survival” claim.
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 win, we were able to secure a favorable settlement for our client. (Prior results do not guarantee similar outcomes.)