In Powers v. 31 E 31 LLL, 2014 NY Slip Op 07084, 24 NY3d 84 (Ct. App. Oct. 21, 2014), a premises liability personal injury case, the New York Court of Appeals ruled in favor of the plaintiff, who sustained debilitating injuries after falling down an air shaft between two apartment buildings.
The motion court denied defendants’ motion, the Appellate Division reversed, and the Court of Appeals reversed the Appellate Division.
Here are the facts:
In the early morning hours of August 23, 2008, plaintiff Joseph W. Powers and several others, all of whom had been consuming alcohol, visited a friend’s apartment located on the second floor of a 13-story apartment building in Manhattan. During the visit, the group stepped through a window in the apartment to access the adjacent roof deck. The window opening was 17½ inches wide by 31 inches tall, and the flat roof area was approximately five feet wide and extended the length of the building above the first floor. This setback portion of the roof abutted the exterior wall and railing of a structure behind the apartment building. In one area of the roof there was a 25-foot-deep air shaft situated between the two buildings. There was no railing, fence or parapet wall around the perimeter of the air shaft. The opening of the air shaft measured approximately six feet, four inches by eight feet, five inches.
Plaintiff and the others walked around the setback roof for a few minutes and then re-entered the apartment through the window they had used earlier. After a time, the group realized that plaintiff was no longer with them. They undertook a search and discovered that plaintiff was lying unresponsive at the bottom of the air shaft. Apparently, plaintiff had re-exited the apartment through the window and fallen off the unguarded edge of the setback roof into the air shaft. As a result of this tragic accident, plaintiff sustained debilitating injuries.
Plaintiff sued, alleging that defendants “created and maintained a dangerous condition and negligently caused his injuries by failing to install a railing, parapet wall or fence around the perimeter of the air shaft.”
The court held that defendant failed to make a prima facie showing of entitlement to judgment as a matter of law as to whether the absence of a protective guard on the setback roof violated the building codes. In particular:
[I]t was defendants’ burden to prove at the outset that the absence of a railing did not violate the building regulations. … On this record, defendants have not adequately demonstrated that the roof was finished with gutters in 1909, and the certificate of occupancy is inadequate to establish that the setback roof fully complied with all code mandates on the date of its issuance or 29 years later on the day of plaintiff’s accident. Hence, under the circumstances of this case, issues of fact concerning the roof’s compliance with the building codes remain.
In addition, the court held that “reasonable minds could differ as to whether plaintiff’s use of the roof and his resulting fall were foreseeable,” reasoning:
[H]ere, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. … [T]he tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof.