The tragic story of the death of 15-year-old Natalia Jimenez is making the rounds. The New York Times reports, for example, that Ms. Jimenez died on Friday (1/15/16) afternoon after she tried to jump from one rooftop to another in Manhattan’s Hell’s Kitchen neighborhood. The Times article continues:
A neighbor chastised [Natalia and her two friends], telling them they should not be there, the police said. The friends had jumped between three buildings and were headed back to where they started when Natalia lost her footing and slipped into an enclosed air shaft between the buildings — 697 and 699 10th Avenue — landing on the pavement. Flimsy black netting had covered the shaft, but on Friday night a gaping tear remained where she had fallen through.
Might her family be able to sue the building owner(s) for negligence/wrongful death? The answer is that it is too early to tell as there are too many variables/unknown facts applicable to the question of whether, and to what extent, tort liability might lie.
That said, even assuming that Ms. Jimenez were herself negligent or otherwise at fault, that fact alone would not preclude recovery for her wrongful death. N.Y. C.P.L.R. 1411 (McKinney) provides:
In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
Also instructive is Powers v. 31 E 31 LLC, 2014 NY Slip Op 07084, 24 NY3d 84 (Ct. App. Oct. 21, 2014), in which an alcohol-consuming-plaintiff suffered debilitating injuries after falling off an unguarded edge of a setback roof and down a 25-foot-deep air shaft. (There is no indication that plaintiff jumped.) The Court of Appeals held that defendants were not entitled to summary judgment “with respect to whether the absence of a protective guard on the setback roof violated the building codes and whether the accident was foreseeable” and remitted the case to the lower court for further consideration.
Unfortunately, some may determine – based only on the headlines and news reports surrounding this case – that a lawsuit would be futile or frivolous. While it remains to be seen whether a lawsuit will be filed (and, of course, whether it will be successful), it’s best to wait for all the facts to come in before drawing such conclusions.