A New Duty of Care for Property Owners
Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.
The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.
For some time, it's been the law in many parts of New York
State that a landowner had no duty to warn visitors of an
obvious and readily observable hazard. The idea was that a
person of normal intelligence can see an obvious danger and
will avoid it.
However, two recent appellate decisions, while generally
confirming that rule, have established a new one, that landowners
can't fail to address a hazardous condition that they are
responsible for just because it's obvious. It is part of a
statewide and a nationwide trend away from relieving landlords
and others in control of a property from liability for obvious
dangers on that property.
In each of these cases, the plaintiff brought an action to
recover for injuries sustained due to conditions that were
either readily observable or actually known to exist by the
In MacDonald v. City of Schenectady, the claimant tripped
on a crack in a sidewalk that she had walked on daily for
over a month and that had been in need of repair since the
city removed a tree stump six years prior to the accident.
In Cupo v. Karfunkel, a Federal Express worker suffered injuries
when the front wheel of an hydraulic lift caught in a depressed
area of a sidewalk on a public street outside a property,
causing the lift to overturn, throwing the employee to the
In each of these cases, the property owner moved for dismissal
of the case, disclaiming either a duty to warn the victim
of the condition or a duty to repair, based on a principle
that had been accepted by the courts for years, namely, that
there are no such duties to warn or repair when the allegedly
dangerous condition was open and readily observable by the
In both cases, however, the courts departed from previous
precedent in a Solomonic fashion, generally upholding the
exception from a duty to warn, but allowing for the imposition
of a duty to correct even open and readily observable conditions
to the extent that it can be established that the condition
was inherently dangerous.
For example, in MacDonald, the appellate panel said that,
while there is no duty to warn, there is a separate and broader
duty of care, a duty to maintain one’s property in a
reasonably safe condition.
According to the MacDonald court, while the open and obvious
defense, as applied to the duty to warn, is based on the rationale
that obvious dangers themselves warn of their own condition,
the same rationale simply does not hold true with respect
to a landowner's more general duty to maintain its property
in a reasonably safe condition. Otherwise, the Court reasoned,
a landowner could forever fail to fix even an extremely hazardous
condition, no matter how likely it might be that injuries
would result, simply by virtue of the fact that it is obvious
and apparent to onlookers.
The Cupo Court expressed agreement with the reasoning in
MacDonald and held that, regardless of any duty to warn of
dangerous conditions on the property, a landowner has a separate
duty to keep the property in a reasonably safe condition for
those who use it.
Yet, despite these two decisions, reversing years of precedent
absolving property owners of a duty to repair open and readily
observable conditions, the reversal is not without limits.
First, while both courts held that the open and notorious
nature of the condition did not automatically absolve the
property owner of liability to repair, both held it would
be relevant to a finding of “comparative negligence”,
a legal theory under which a certain portion of the fault
could be attributed to the victims who could have –
or should have – avoided some or all of the damage themselves.
Second, the fact that an owner cannot absolutely escape liability
stemming from a readily observable dangerous condition is
not the same as saying that the landowner is always liable
for accidents caused by any open condition.
For example, the Cupo Court noted that:
“...we do not suggest that a court is precluded from
[finding for ]a landowner on the ground that the condition
complained of by the plaintiff was both open and obvious and,
as a matter of law, was not inherently dangerous”
In other words, while the open nature of the condition doesn’t
allow an owner to disavow liability, it doesn’t, alone,
create liability either, since the condition must still be
one that the land owner has a responsibility to remedy in
the first place.
Still, the MacDonald and Cupo cases are important, not only
because they reverse longstanding interpretations, but because
they are recent examples of a clear trend in the country as
whole toward holding landowners responsible for reasonably
maintaining their property, even when it comes to obvious
In short, warning of an openly dangerous condition is not
necessarily required, but even where it’s not, liability
to repair or maintain may still be found, and obviousness
is no defense to this duty. So assess any dangerous conditions
on any property you own or are responsible for and deal with
them, based on your assessment.
So, assess your particular situation. It’s up to you
to evaluate and address any hazards to a reasonable degree.
Use common sense, but do it with your attorney. It may save
you from ending up the losing party defendant in a personal
Copyright © Jay Hollander, 2007. All Rights Reserved.