23 N.Y.3d 84 (2014)

A landowner’s duty to maintain property in a reasonably safe condition extends to foreseeable uses of the property, even if those uses are not explicitly authorized, and the question of foreseeability is generally one for the jury.

Summary

Joseph Powers fell from a setback roof of an apartment building into an air shaft and sustained serious injuries. He sued the building owners, alleging negligence in failing to install a protective railing or wall. The New York Court of Appeals reversed the Appellate Division’s grant of summary judgment to the defendants, holding that issues of fact remained regarding the building’s compliance with applicable building codes and the foreseeability of the accident. The court emphasized the landowner’s duty to maintain property in a reasonably safe condition, considering foreseeable uses, even unauthorized ones.

Facts

Joseph Powers, while visiting a friend’s apartment, accessed a setback roof through a window. The setback roof lacked a railing around a 25-foot-deep air shaft. Powers later re-exited the apartment and fell into the air shaft, sustaining injuries. The building was constructed in 1909 and converted to multiple dwelling use later.

Procedural History

Powers sued the building owners for negligence. The Supreme Court denied the defendants’ motion for summary judgment. The Appellate Division reversed, granting summary judgment to the defendants. The New York Court of Appeals granted leave to appeal and reversed the Appellate Division’s order.

Issue(s)

1. Whether the defendants’ summary judgment proof sufficiently refuted the plaintiff’s allegation that the building codes required a railing or parapet on the setback roof?

2. Whether the plaintiff’s accident was foreseeable, precluding summary judgment for the defendants?

Holding

1. No, because the defendants failed to eliminate questions of fact concerning the applicability of building code exceptions and whether the building’s conversion to multiple dwelling use triggered an obligation to comply with updated building codes.

2. No, because reasonable minds could differ as to whether the plaintiff’s use of the roof and his resulting fall were foreseeable.

Court’s Reasoning

The Court of Appeals held that the defendants, as the moving party for summary judgment, failed to demonstrate the absence of material issues of fact regarding compliance with building codes. Specifically, they did not conclusively prove that the roof was finished with gutters in 1909 (potentially exempting it from earlier code requirements) or that the later conversion to multiple dwelling use did not trigger an obligation to comply with the 1968 Building Code. The court found the engineer’s affidavit and certificate of occupancy insufficient to establish code compliance.

Regarding foreseeability, the court cited Lesocovich v. 180 Madison Ave. Corp., 81 NY2d 982 (1993), which involved a similar fall from a setback roof. The court emphasized a landowner’s duty to maintain property in a reasonably safe condition extends to foreseeable uses, even unauthorized ones. The court noted the setback roof was accessible through a window, was large enough for multiple people, and there was evidence of prior use, making the accident foreseeable. As the court stated, “[t]he risk reasonably to be perceived defines the duty to be obeyed”. Because the defendants failed to establish a prima facie case for summary judgment on either code compliance or foreseeability, the burden did not shift to the plaintiff to offer opposing proof. The court remitted the case for further proceedings.