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Landlord's Duty Arises From Ability And Opportunity To Control Conduct

April 28, 2012

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<p style="text-align: left;" align="center">In <em>Banner vs. New York City Housing Authority,</em> the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant's building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building.  The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner.  The court noted that  "a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances."  This duty includes an obligation "to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person.  However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so."</p>
The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes.  The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided.  The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged.  As such, summary judgment was granted to the defendant.

<div>Thanks to Sandy Debbas for her contribution to this post.</div>
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