Generally, when injury results from a hazard that violates applicable building code standards, a strong case for premises liability can be made. The code itself can help establish constructive knowledge of a dangerous condition. Still, there are sometimes exceptions to the rule, which is why it’s so important to have an attorney with experience on your side.
In some instances, older buildings are allowed to avoid expensive updates to bring a property up-to-date with current codes, a process called being “grandfathered in.” But this does not shield a property owner or manager in all instances, and it definitely doesn’t excuse failure to warn of a dangerous condition that is not obvious to tenants or guests. This is true even in cases where plaintiff may share some degree of fault.
Our Fort Lauderdale injury lawyers recently learned of a case where this very issue was weighed by the New York Court of Appeals. In Powers v. 31 E 31 LLC, the appellate court overturned an earlier summary judgment in favor of defendant property owners, finding there was not sufficient evidence to prove defendants weren’t bound by current building code standards – even though the structure in question was older.
Court records indicate the victim suffered severe and permanent injuries after falling down an unguarded, 25-foot air shaft next to a roof deck outside the window of a second-story apartment building. Plaintiff, a guardian ad litem for the incapacitated victim, alleged the injury occurred while the man was visiting the apartment of a friend with several others. Plaintiff concedes everyone was drinking alcohol, and they exited the apartment through the window to access the roof deck.
Everyone filed back inside after a few minutes – so they thought. It took some time before they realized the victim had not followed them back in. He was later found at the bottom of the unguarded air shaft.
Plaintiff noted a portion of the state’s updated building codes that requires air shafts to be properly guarded.
Defendant argued for dismissal on grounds that it wasn’t bound by the newer building codes, and the older codes in place at the time the structure was built (in 1909) did not have this requirement. Defendant further argued it could not have foreseen that tenants and/or guests would exit through a window, and the danger was open and obvious. Therefore, defendant argued, there was no duty to mitigate the risk or issue a warning.
The trial court disagreed, but appellate division reversed, finding substantial merit to defendant’s position. However, the New York Court of Appeals again reversed, finding that while the building met the codes as required in 1909, an update to the code in 1968 required all buildings taller than 22 feet with roofs flatter than 20 degrees to erect a fence or railing around such spaces.
Defendant argued that was only applicable to the highest roof on the building. This building was 13-stories tall, but the incident happened at the roof outside the second story.
However, the court determined defendants had not provided sufficient evidence that it was exempt under this updated code. Therefore, summary judgment was reversed and the case has been remanded back to trial.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Powers v. 31 E 31 LLC,Oct. 21, 2014, New York Court of Appeals
More Blog Entries:
Trip-and-Fall Claims Require Actual or Constructive Knowledge, Oct. 12, 2014, Fort Lauderdale Premises Liability Lawyer Blog