An intermediate New York appellate court has held that a landlord was not liable for a tenant’s fall from the building’s roof, as the fact that the roof was accessible from the roof did not render the plaintiff’s use of the roof foreseeable. Feuerherm v.Grodinsky concerned an accident that occurred at a seven-unit apartment. The injured tenant had moved into the building at most a few weeks prior to the accident. A portion of the building’s roof was accessible from the injured tenant’s room. After drinking at a bar, the plaintiff tenant arrived home at 3 am, and was found on the ground outside the building several hours later. Although the tenant did not recall the accident, the physical evidence indicated that the tenant fell from the roof. The tenant alleged that the landlord violated New York’s Property Maintenance Code, and failed to maintain the building in a reasonably safe condition. The trial court granted summary judgment in the defendant’s favor.
The Third Department of the Supreme Court, Appellate Division began its analysis by noting that to prevail on summary judgment, the defendant landlord was required to demonstrate that he maintained his property in a reasonably safe condition and that he neither created nor had actual or constructive notice of the purportedly dangerous condition. In support of his motion for summary judgment, the landlord offered an affidavit of a professional engineer, stating that the roof was compliant with all building codes and that the roof was reasonably safe for its intended purpose. The engineer stated that as the roof was not used for living, sleeping, eating, or cooking, no railings or guards needed to be installed on the roof. The Court concluded that this was sufficient to establish that protective measures were not necessary on the roof.
The Court further noted that even if it could be assumed that the roof was hazardous, there was no evidence that the landlord created the condition or had actual or hazardous notice of the condition. The prior owner of the building (who also served as one of the defendant’s property managers) testified that the roof was in good condition when he purchased the property, and there was no evidence that the current owner had made any modifications to the roof. Furthermore, while neither the current owner nor prior owner made any effort to block access to the roof from the window, the prior owner testified that this would have violated the building code because people would not have been able to escape during a fire.
The prior owner also testified that he never saw or was otherwise aware of people being on the roof, either while he owned the property or thereafter. While the plaintiff testified that residents would go onto the roof to smoke, neither of them indicated that the landlord was aware of this fact. Indeed, the prior owner stated that unless an individual went onto the roof itself, there was no way to get a view of the roof to determine whether people were using it. While three cigarette butts were found on the roof, there was otherwise no proof that the roof was being used by residents or that the landlord had notice of this fact.
The Court observed that prior cases involving liability claims arising from falls from roofs were distinguishable. In those cases, evidence establishing an “obvious and frequent” use of a roof for recreational purposes raised issues of material fact as to whether use of the roof by the injured plaintiff was foreseeable. In the absence of such evidence, the Court held that the mere fact that the roof was accessible from the room’s window did not raise a question of fact as to whether the use of the roof was foreseeable. The Court therefore affirmed the trial court’s decision granting summary judgment in the defendant’s favor.
Feuerherm reflects a common-sense approach ensuring that building owners will not be required to take measures to secure roofs in the absence of any evidence that such measures are necessary. At the same time, Feuerherm and prior decisions demonstrate that New York landlords cannot turn a blind eye to frequent and obvious use of a building roof by residents. Rather, if a landlord is or should be aware that a building roof is being used by individuals, the landlord may be held accountable for failing to take steps to protect people from injury.
