Court Affirms Dismissal of Trespasser’s Personal Injury Case

The tragic story of Connor Cummings, who died while trying to take a photo atop NYC’s Four Seasons Hotel, is making the rounds. Assuming Mr. Cummings was trespassing, might he have a claim? It depends.

A recent Second Circuit decision, Philip v. Deutsche Bank Nat. Trust Co., No. 14-4054-CV, 2015 WL 6642978 (2d Cir. Nov. 2, 2015) (Summary Order), is instructive on the issue of when an injured trespasser can recover (under New York law) for personal injuries sustained on someone else’s property. In Philip, the plaintiff – who was given access and working keys to the premises by someone he (incorrectly) assumed was an authorized employee or agent of the owner – was injured in a fire caused by the accidental ignition of a hot plate. (The Philip facts, as such, differ from those that appear to relate to Mr. Cummings’ death.)

The district court, 2014 WL 4953572, held that the undisputed facts demonstrated that plaintiff was a trespasser whose presence was not foreseeable, and therefore granted summary judgment to defendant. The Second Circuit affirmed.

The law, as summarized by the court:

Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach. Although New York does not approach the duty-of-care inquiry by determining the status of an entrant (i.e., whether the entrant is an invitee, licensee, or trespasser), the court may consider who the plaintiff is, what his purpose was on the land, and what would constitute reasonable care under the circumstances. Indeed, whether it is likely that a plaintiff would be on the property is the primary independent factor in determining foreseeability[,] and the duty of the owner or occupier will vary with the likelihood of plaintiff’s presence at the particular time and place of the injury.

Since plaintiff was a trespasser, the landowner did not owe him any duty beyond a duty of reasonable care, i.e., to maintain its premises in a reasonably safe condition. The duty of reasonable care “extends only to reasonably foreseeable accidents.” Here, the record showed that “neither Philip’s entry on the Property nor the fire itself was a foreseeable event.” Specifically, “[t]he district court correctly found that it was not a foreseeable accident that a hot plate used as heating device would catch fire, that a trespasser would thereafter attempt to extinguish the fire rather than flee, and that the trespasser would ultimately lose consciousness and sustain burns on a secured property.”

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