Wade Clark Mulcahy LLP

Generally, in an action to recover damages for personal injuries, landowners owe a duty of general care for maintaining their property in a reasonably safe condition – a duty not easily relieved. The bounds of such a duty are focused on a landowner’s ability to exercise or exert control over a particular property, e.g. a duty is placed on the landowner or the entity able to exercise or exert control because “the person in possession and control of property is best able to identify and prevent any harms to others.” But what happens when a landowner leased or provides exclusive control over a particular property to another? Does that duty survive and extend through such a lease or is the landowner relieved of it?  In Williams-McKay v. Parkgate Communications, Inc., the Appellate Division, Second Department, answered and affirmed those exact questions.

In Williams-McKay, the Karolyn Williams-McKay, a school bus driver for a transportation entity named Veterans Transportation had completed her morning bus route shift and returned the bus to the designated bus yard. After parking and exiting, the Plaintiff began taking several steps whereby she stepped in a pothole and was caused to fall, thereby suffering personal injuries. At the time of this incident, the landowner of the bus yard was the Defendant, Parkgate Communications, Inc. However, pursuant an oral agreement, Parkgate had actually leased the bus yard to Veterans Transportation. The Plaintiff eventually filed suit, and Defendant Parkgate moved for summary judgment. The lower Supreme Court denied Parkgate’s summary judgment, and they appealed.

In reviewing the case, the Second Department noted that, while landowners who exercise control over a property are generally held to a duty to maintain said property in a reasonable safe condition, landowners who have transferred possession and control of a property are generally not liable for dangerous conditions on them, e.g. an ‘out-of-possession landlord’. With this understanding in mind, the Court ultimately found that Parkgate had failed to sufficiently establish that they were an ‘out-of-possession landlord’ at the time of the accident, as it was unclear whether possession and control of the bus yard had been sufficient transferred to Veterans Transportation. Additionally, the Court found that Parkgate failed to eliminate the possibility of whether they knew or should have known about the subject pothole prior to the accident. Therefore, Parkgate’s duty for maintaining the bus yard in a reasonably safe condition remained, despite them having leased it out to Veterans Transportation (an important point for any landlord is to ensure being able to prove that possession and control of a property are sufficiently transferred when leasing a property out to another).

Thanks to William Hoffman for his contribution to this post.