Dangerous Condition of Public Property in New York

What Is a Dangerous Condition of Public Property?

How to Structure the Pleading

Dangerous condition evaluations are fact-based, and depend on the unique circumstances surrounding the particular case -- critically, courts in New York look to ensure that liability will not be imposed for defects that are merely trivial. (Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997)).

Examples of dangerous conditions include: debris and garbage in a stairwell, liquid puddles in supermarkets, ice patches on sidewalks, and more. (Bido v. 876-882 Realty, LLC, 41 A.D.3d 311 (1st Dept 2007); Navedo v. 250 Willis Ave. Supermarket, 290 A.D.2d 246 (1st Dept 2002); Rosenblatt v. City of New York, 160 A.D.2d 927 (2d Dept 1990)).

The lack of a suicide barrier is a dangerous condition where the defendant landowner acknowledges that safety measures were required to prevent individuals from jumping off the bridge in light of statistics showing a high prevalence of suicidal thoughts. However, by definition, persons who use the bridge to commit suicide are not using the bridge in a manner used by the general public exercising ordinary care. Because the stated purpose for the bridge redesign was implementation of suicide prevention measures, and because defendants failed to adequately implement such measures, claims for failure to maintain the bridge in a reasonably safe condition survived. (Ginsburg v. City of Ithaca, 839 F. Supp. 2d 537 (N.D.N.Y. 2012)).

Enshrined in New York Pattern Jury Instruction 2:90, a person or entity in control of property has a duty to use reasonable care to maintain the premises in a reasonably safe condition for everyone whose presence is "reasonably foreseeable."

A landowner (private or public) has a duty of care to maintain their property in a safe condition, regardless of the status of the individual who injured themselves (i.e., visitor, trespasser). (Basso v. Miller, 40 N.Y.2d 233 (1976)). Importantly, however, the possessor of land is not an "insurer" of safety for people using the premises. (Florman v. City of New York, 293 A.D.2d 120 (1st Dept 2002)).

Attractive Nuisance

Though in New York, a possessor's duty is supposedly the same with respect to both adult and child trespassers, the rule is not applied indiscriminately to children as it would be to adults. (Barker v. Parnossa, Inc., 39 N.Y.2d 926 (1976)). The "status of a child as a trespasser will not preclude liability for negligently inflicted injury." (Id). The utility of the dangerous condition is balanced against the risk of serious harm to children on the property.

Open and Obvious Condition

In New York, if the dangerous condition was open and obvious, then the landowner has no duty to warn individuals coming onto the property of its existence. (Shah v. Mercy Medical Center, 71 A.D.3d 1120 (2nd Dept 2010)).

Timeline

Some cases do not require actual or constructive notice, as the plaintiff may be able to show that the defendant "created" the dangerous condition, such as improperly designing a sidewalk, creating a tripping hazard. (Ritchie v. Felix Assoc., LLC, 60 A.D.3d 402 (1st Dept 2009)).

Liability for a dangerous condition of public property may only be imposed if the property owner was aware of the dangerous condition -- proof of actual notice can be established by evidence of prior accidents, but evidence of no prior accidents can also be used to establish the non-existence of the dangerous condition. (Orlick v. Granit Hotel & Country Club, 30 N.Y.2d 246, 331 N.Y.S.2d 651 (1972)).

Constructive notice may be established if there is not actual notice. For constructive notice, the defect at-issue must be obvious and must be in existence for enough time (before the accident) that the defendant -- exercising reasonable care -- should have discovered the dangerous condition and corrected it. (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646 (1986)).

Response

To sue a municipality, you must first generally provide prior written notice of the purported dangerous condition.

Cities can be held liable for dangerous conditions in public streets. (D'Onofrio v. City of New York, 11 N.Y.3d 581 (2008)).

Where an agency acts in a governmental capacity, a plaintiff may not recover without proving that the agency owed a "special duty" to the injured party. (Valdez v. City of New York, 18 N.Y.3d 69, 75 (2011)). The core principle is that "to sustain liability against a government agency, the duty breached must be more than that owed the public generally." The plaintiff bears the burden of proving a special relationship.

To establish a special relationship beyond the duty that is owed to the public generally, four elements must be present: 1) an assumption by the agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) knowledge on the part of the agency that inaction could lead to harm; 3) some form of direct contact between the agency and the injured party; and 4) the injured party's justifiable reliance on the agency's affirmative undertakings. (Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 430-431, (2013)).

Public entities cannot be charged with liability in tort for alleged negligent in undertaking a "primarily-governmental function." (In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 447 (2011)).

Documents for Dangerous Condition of Public Property in New York

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W. B. an infant under the age of fourteen (14) years, by her mother and natural guardian ALEJANDRA AZIOS, Alejandra Azios individually v. Livingston Manor Central School District, John Evans, E. S. an infant under the age of eighteen (18) years, by his mother and natural guardian, ALYSIA LANTIGUA document preview

EXHIBIT(S) - A Notice of Claim - Notice of Claim Redacted

6 pages

FILED: SULLIVAN COUNTY CLERK 05/10/2024 12:54 PM INDEX NO. E2022-948 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 05/10/2024 Exhibit A FILED: SULLIVAN COUNTY CLERK 05/10/2024 12:54 PM INDEX NO. E2022-948 NYSCEF DOC. NO. 150 …

Case Name W. B. an infant under the age of fourteen (14) years, by her mother and na…