A. Substantive Framework

• Jurisdiction: New York

A. Substantive Framework

The law of premises liability spans many volumes of learned treatises and the Pattern Jury Instructions. A full analysis of the law is beyond the scope of this monograph. When analyzing a case involving premises liability, first gather all facts, then review the Pattern Jury Instructions or treatises, and finally, specifically research your fact pattern using Westlaw, Fastcase, or Lexis Advance. The Appellate Division cases on point should road-map the required elements of your proof. If you need further help litigating the case, contact a more experienced member of the bar, and pull the Appellate Division record from the closest case on point. It may assist you in anticipating defenses and preparing for depositions. The following sections identify common defenses and litigated issues in premises liability cases. They are by no means exclusive or complete.

As a general rule, landowners owe a duty of reasonable care to people on their property.⁴⁰³ The exceptions and caveats to this general rule are too numerous to mention. That being said, a defendant can be held liable for a defective condition⁴⁰⁴ on the defendant's property if he or she created the condition, or had actual⁴⁰⁵ or constructive notice of the condition.⁴⁰⁶ Notice is one of the key defenses to a premises liability case. Its importance cannot be overstated.⁴⁰⁷

A plaintiff may establish constructive notice by proving a recurring dangerous condition,⁴⁰⁸ or by establishing that the condition existed for such a length of time that the defendant knew or should have reasonably known of the condition.⁴⁰⁹ Whether constructive notice exists generally turns on how long the dangerous condition existed, whether it was visible and apparent, and how it came into existence.⁴¹⁰

A plaintiff need not establish constructive or actual notice if the defendant created the condition.⁴¹¹ This is true even if the defendant is a municipality.⁴¹² Therefore, from the plaintiff's standpoint, it may be easier to prove a premises liability case against a defendant that creates a dangerous condition.

A landowner owes a duty of reasonable care to warn of dangers on the property.⁴¹³ However, a landowner does not owe a duty to warn visitors upon his or her land of the potential danger of risks on the landowner's property from adjoining property.⁴¹⁴

A managing agent of a building may be held liable for affirmative negligence resulting in a dangerous condition in an apartment building. However, if the property manager only is responsible for nonfeasance, the plaintiff must show that the managing agent held complete and exclusive control of the...