Tuesday, March 7, 2017

A landowner's liability.

Practice point:  A landowner has a duty to maintain the premises in a reasonably safe condition. In determining the extent of that duty, the court must take into account circumstances including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that the landowner affirmatively created the condition or had actual or constructive notice of its existence. A defendant is deemed to have had constructive notice of a defect when (1) the defect was visible and apparent, and (2) it existed long enough for the defendant to have discovered and remedied it before the plaintiff was injured.  When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed.  In moving for summary judgment on the ground that the alleged defect was latent, a defendant must establish, prima facie, that the defect was not visible or apparent and would not have been discoverable upon a reasonable inspection, and that he or she did not affirmatively create the defect and did not have actual notice of it.

Case:  Arevalo v. Abitabile, NY Slip Op 01526 (2d Dep't March 2, 2017)

Here is the decision.

Tomorrow's issue:  A foreclosure settlement conference.