The New York Court of Appeals ruled an apartment building owner is not entitled to summary judgment just because the older building, the site of a fall resulting in serious injury, adhered to the building codes at the time the structure was first built.
In Powers v. 31 E 31 LLC, the court found defendant failed to provide prima facie evidence the 1909 original structure did not have to abide by updated building codes passed in 1968 and 2008. The court also rejected defendant’s argument that there was no duty to mitigate the risk of this particular kind of accident, as defendant could not foresee plaintiff’s fall because it resulted from him accessing a roof outside a window.
Specifically, plaintiff fell off the unguarded edge of a setback roof into an air shaft – a 25-foot drop that resulted in severe and permanent injuries.
Our Manhattan premises liability attorneys know this was an important reversal, as it holds landowners to a higher standard of proof in validating lack of adherence to modern building codes.
The fact is, building codes are in place because they make the property safer for everyone – from owners to tenants to guests to passersby. It’s true that some properties – or aspects of properties – may be grandfathered in to newer codes. However, that is not always the case. When a non-compliant hazard results in injury to someone, the burden of proof will be on the property owner to prove he or she was not required to update the property. And even if this is the case, the property owner still has a duty to maintain the site in a safe condition and to warn of known hazards.
In the Powers case, plaintiff, represented by a guardian ad litem due to his ongoing disabilities resulting from the fall, asserts that on the night in question, he and several friends were drinking alcohol when they went to a friend’s apartment. At one point, several friends accessed the roof deck of the second-story by exiting a window. When his friends returned, they realized he was not with them. After searching the site, they found him unresponsive at the bottom of the air shaft, having fallen from the unguarded ledge.
In the lawsuit that followed, plaintiff asserted the lack of guardrail or other fencing around the roof deck and air shaft violated the Multiple Dwelling Law and the New York City Business Code.
Defense sought summary judgment on the grounds those codes were not applicable because the building predated them and the accident was not foreseeable. The Supreme Court denied the motion, finding proof insufficient to show the codes didn’t require this particular structure to be outfitted with protective guards. Additionally, questions of foreseeability and the allegedly open-and-obvious nature of the danger should be answered at trial.
However, reversal came from the Appellate Division, which weighed a 1979 certificate of occupancy demonstrating defendants were allowed to “grandfather out” of the code requirements, and the structure adhered to previous code requirements.
The New York Court of Appeals granted plaintiff leave to appeal, and ultimately reversed. Although the building did meet 1909 code requirements, there was question about whether its conversion to a multiple unit dwelling required that it be brought up to the code standards in 1968 – which would have mandated guards around the roof setback and air shaft.
The case was remanded for trial.
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Powers v. 31 E 31 LLC, Oct. 21, 2014, New York State Court of Appeals
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Distraction Doctrine Exception to Open and Obvious Defense, Oct. 15, 2014, Manhattan Premises Liability Lawyer Blog