Case Arising From Plaintiff’s Fall Down Air Shaft Continues

In Powers v. 31 E 31 LLC, 2014 NY Slip Op 07084, 24 NY3d 84 (Ct. App. Oct. 21, 2014), the Appellate Division, First Department affirmed the denial of defendants’ motion for summary judgment dismissing the complaint. I had previously written about the Court of Appeals’ October 21, 2014 decision in plaintiff’s favor on various issues in the case. The Court of Appeals remitted the case to the Appellate Division for consideration of issues raised but not determined on that appeal.

Here again are the facts of this premises liability personal injury case:

In the early morning hours of August 23, 2008, plaintiff was injured when, while intoxicated, he landed in the bottom of an air shaft after falling off a setback roof of a building owned and managed by defendants. The setback roof, which ran the length of the rear of the building, was five feet wide and accessible through a window of the second-floor apartment of plaintiff’s friend. Although most of the setback abutted either a wall or a setback roof of the adjacent building, a portion of it abutted a 25-foot-deep air shaft. There was no railing, fence or parapet wall around the perimeter of the air shaft, whose opening measured approximately six feet, four inches by eight feet, five inches.

Initially, the court rejected defendants’ argument on the ground that “the alleged hazard was an open and obvious condition that was not inherently dangerous.” After summarizing the law regarding what hazards qualify as “open and obvious”, the court held:

Viewing the evidence in the light most favorable to plaintiff, we find that a triable issue of fact exists whether the unguarded opening from the setback roof to the air shaft was an open and obvious condition that was not inherently dangerous.

Plaintiff asserts that, at night, guests climbing out of the window and onto the setback roof could not see the air shaft or appreciate the drop. One of plaintiff’s companions testified that she did not notice the air shaft the first time that she went out on the setback. Most of the setback was adjacent to either the wall or the roof of the adjacent building, and only that small portion where plaintiff fell, next to the air shaft, was completely open to the surface below. There is also conflicting testimony as to the available lighting.

The court next rejected the defendant’s argument “hat plaintiff’s extraordinary act of climbing through the window and walking back out onto the setback ledge at night while intoxicated was the superseding or sole proximate cause of the accident.” It reasoned:

On the record before us, defendants have not established as a matter of law that plaintiff’s act of walking out onto the setback roof was a superseding or intervening cause that severed the causal connection between his injuries and any negligence on their part. Plaintiff had never been to the building before the night in question, and defendants did not establish that plaintiff either knew, or should have known, that his conduct was dangerous, notwithstanding that he apparently fell during his second trip onto the setback roof. The fact that plaintiff was legally intoxicated does not alone render his actions a superseding cause.

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