Wade Clark Mulcahy LLP

<span style="font-family: Calibri;"><span style="font-size: medium;">In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/08/DAndrea-v-Bond.pdf">D'Andrea v Bond</a></em></span><span style="font-size: medium;">, the plaintiff police officer was injured while responding to a radio call.   When he reached the defendant’s property, he heard noises coming from the backyard that was enclosed in both stockade and chain link fences.  In order to peer over the fences, he stepped on a pile of discarded stockade fencing.  However, the fencing shifted and collapsed, and the officer fell to the ground injuring his shoulder.  </span></span>
<span style="font-family: Calibri; font-size: medium;">The officer pursued a claim against the property owner on two theories:  common-law negligence and General Municipal Law <span style="font-family: Calibri;">§ 250-e</span>.  The motion court granted summary judgment to the defendant on the former, but found a triable issue of fact on the latter.</span>
<span style="font-family: Calibri; font-size: medium;">Under General Municipal Law <span style="font-family: Calibri;">§ 250-e</span>, a police officer injured  in the course of duty, the officer must establish: 1) the defendant failed to comply with a statute or ordinance  (2) the manner in which the police officer was injured, and (3) those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm.</span>
<span style="font-family: Calibri; font-size: medium;"> </span><span style="font-family: Calibri; font-size: medium;">In the instant matter, the plaintiff-officer alleged that the defendant failed to comply with Administrative Code of the City of New York § 28-301.1, which places a duty on homeowners that "[a]ll buildings and all parts thereof and all other structures shall be maintained in a safe condition." However, under this administrative code section liability under General Municipal Law § 205-e is limited to structural or design defects.  </span>
<span style="font-family: Calibri; font-size: medium;">The Appellate Division found that the pile of fencing material that the plaintiff-officer tripped on was not a structural or design defect and, accordingly, the defendant-homeowner could not be held liable for the plaintiff-officer’s injuries.</span>
<span style="font-family: Calibri; font-size: medium;">Thanks to Georgia Coats for her contribution.</span>
<span style="font-family: Calibri; font-size: medium;">For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.</span>
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