Perhaps one of the foremost rights of being a property owner is the right to decide who comes onto the property. However, to exclude persons if he desires, the landowner is not required to fence the premises. Nor is the owner of land obligated to fence off portions of the property to protect entrants from obvious minor conditions which exist, if it is known or open and obvious.
However, the property owner must use “reasonable care” in the maintenance of his premises, so as not to create, nor allow to exist, a condition that constitutes a “defect” or “hazard” to those who may come upon the land. This is the standard of care articulated long ago by New York courts—including the highest court in New York, the Court of Appeals— which property owners, those in possession or control or who maintain owe to entrants onto the land. This applies to all who enter, whether invited guests or unknown trespassers. The standard is flexible, however, and allows the jury to decide what is “reasonable” on the part of the owner, possessor, or maintainer based upon the circumstances. Further, the standard allows for the determination of whether the accident or occurrence was “reasonably foreseeable.”
Turning to the issue of how fencing of one’s property may impact legal responsibility for an accident, there are certain circumstances where the use of fencing would lead to injury—and therefore legal liability– as a result of the landowner’s or possessor’s negligence. For instance, if there is a hole in the fence through which individuals are known to enter, and if this causes the entrant to immediately encounter a hazard which the owner knows or should know exists, this could result in a finding of negligence. In one New York case, the court found the landowner liable for the plaintiff’s injuries where the landowner failed to connect his fence with his neighbor’s fence, thus leaving a narrow gap between them, as a result of which the plaintiff was injured due to a hazard within that gap. (more…)
Drivers of cars and trucks owe a legal duty to other drivers, passengers, and pedestrians to use “reasonable care” when driving that is commensurate with the care used by other drivers under similar circumstances. Failing to do so is negligent and may result in liability for injuries caused by the failure to do so. Determining whether or not a driver negligently operated his vehicle is normally a factual inquiry to be decided by a jury. The issue is sometimes determined “as a matter of law”, meaning that the conduct was so clear as to be capable of being determined by a judge. The conduct may be assessed under statute (legislature made law), under “common law” (a body of law created through decisions in other cases), or by a combination of both.
When a driver is found to have violated a statute, he may be found negligent based solely on such violation. In other words, the violation of a statute in and of itself is sometimes sufficient to sustain a finding of negligence, known as negligence per se. This includes conduct such as speeding, running a red light, or failing to yield the right of way. Another common example of negligence per se is when the driver fails to use his headlights while driving at night. Injury caused as a result of failing to use headlights can bring about liability. This issue also applies to dim or broken lights, whether they are headlights or taillights. (more…)
All motorists owe a duty of “reasonable care” in the operation of a vehicle so that other motorists and pedestrians will not be subjected to “foreseeable harm.” Reasonable care will vary depending on the circumstances, but a motorist will be responsible for damage he does to a road, or for an unsafe condition created on the road, by leaving debris on its surface, for example. A motorist may also be responsible for injury caused by not avoiding debris and causing it to cause harm to someone in another car.
Knowledgeable Albany car accident attorneys know that motorists must be aware that there may be objects that might fall from a truck or car ahead, and take steps to avoid hitting it. Avoiding contact is important for preventing loss of control of one’s own car, but also to prevent the object from being launched into the path of another vehicle. In assessing the motorist’s conduct, the issue is the conduct of the driver under the circumstances. The totality of the circumstances dictates whether or not liability will be found against a driver. Therefore, striking an object in the road and propelling it into another motorist alone may not be enough to give rise to negligence in every instance. The speed of the car, how much time he had to avoid hitting the object, visibility, and other factors may be considered by the court or jury in assessing whether there was negligence, and if so, if the negligence caused injury to another. (more…)
Landowners and those persons who control premises (e.g., Landlords) owe a duty to keep the premises in reasonably safe repair so that persons using the premises are not injured. If a person slips or trips and falls, sustaining injury, it may give rise to what is known as a premises liability case. Historically in New York the duty of reasonable care varied depending upon the “status” of the person who entered the premises or land. For example, a lesser duty was owed to someone who had not been expressly invited to enter than to one who had been invited by the owner or occupier. This distinction was abolished decades ago and since then the owner or person/party in control must exercise reasonable care in maintaining their property so that all who enter do not suffer from foreseeable harm, this applies even to trespassers, though that fact may impact how a jury decides to consider the extent of liability.
Knowledgeable slip and fall attorneys know that courts require evidentiary proof as to the conduct of the landowner or one in control with respect to the nature of the condition that is alleged to constitute an unsafe condition, or “defect”, that is, whether the risk is “natural” to the land or was “artificially” created. Structures, or parts of structures, such as stairs are an example of an artificial condition that could be shown to have either been built by or on behalf of the owner, or built prior to ownership and only maintained by him. If you are a tenant, the landlord is responsible for common areas such as stairs, and may be liable for injuries that occur if they are not properly constructed or maintained. In addition, if the proof shows that repairs to or maintenance of premises was not done properly, and resulted in injury, the owner or landlord may be held liable for your injuries. (more…)
In order to recover for injuries sustained in a slip and fall accident, the plaintiff (the injured person) must prove negligence on the part of the individual or company that owned or managed the property. The duty owed by premises owners and managers is to use “reasonable care” in preventing foreseeable harm to persons on the property. There must be proof that the defendant breached that duty and that this breach caused the plaintiff’s injuries.
These requirements apply whether the victim fell at a store, police station or the property of a homeowner. Sometimes it can be difficult to identify who is responsible for the management of the property. For instance, in a shopping mall, there are individual stores which are typically leased from the mall owner. There may be a third-party maintenance company that has contracted with the owner or management company.
In most lease agreements, the store only has the right to possess and control the areas within their leased space; that being the area encompassed by the store itself. The management company or the owner of the shopping mall typically has the responsibility to maintain the common areas of the mall, including the entry ways, walkways and parking lots. Often, the management company will subcontract certain aspects of maintenance to other entities. (more…)
All motorists are required to use reasonable care while driving so as to prevent causing harm to others. If an employee is driving in the course of his employment, the question arises as to what legal liability, if any, his employer would have if an accident occur and the employee negligently caused harm to another motorist.
The basic legal principle is that if an employee negligently injures a person while acting within the “course and scope” of employment, the worker’s employer will be held accountable for that conduct. The concept is known as the doctrine of “respondeat superior.” The concept reflects the social policy that when one is doing work for an employer, the employer profits from the benefit of the task. If he is to profit from the task, he should he be liable for any harm that is caused during the performance of the work.
However, in order for this rule of law to apply, it must be proven that the employee had the express or implied permission of the employer to use the company vehicle, and that it was being used in furtherance of the business of the employer at the time of the accident. If the company vehicle was not being used for company business, or for example had been taken without the permission of the employer after the work day ended (and would not have otherwise been allowed based upon past practice), there likely be a finding that the employer would not be held legally responsible for an accident that occurred during such use. (more…)
It is an unfortunate fact that children are sometimes injured by motorists. As a parent, you are undoubtedly concerned over your child’s well-being and recovery. You should know how New York law may enable you to recover compensation on behalf of your child for his or her injuries.
Drivers have the duty to exercise “reasonable care” when operating a motor vehicle. In an area where children should be known to play, such as a residential neighborhood, near a school or playground, the driver has a duty to actively look for children who may run into the road to chase a ball or to cross the street. He is obligated to maintain vigilance in this kind of environment, and adjust his speed and pay closer attention to the road and on each side of the roadway. Children who are old enough to be outside without the direct supervision of a parent are nevertheless not always attentive to the presence of cars on the roads in their neighborhood as their interest is on having fun with friends playing a game or wanting to get to a friend’s house across the street. (more…)
This Winter of 2013-2014 has been unusually cold here in the Capital District, and we’ve had several storms that have resulted in the presence of snow and ice on sidewalks and parking lots that have not been properly maintained following the storm. You should know your rights if you slip and fall while attempting to walk from your car or while on a sidewalk at a mall or shopping center. You may be entitled to compensation for pain and suffering, medical bills and lost wages if there was negligence on the part of the owner or maintenance company that failed to do what New York law requires. Call and speak with one of our Albany slip and fall attorneys who are knowledgeable in the law and experienced in obtaining the compensation you deserve.
Your right to obtain compensation from the property owner or maintainer is based upon whether he exercised ”reasonable care” in maintaining the premises. His legal duty is to keep the premises safe to prevent harm to foreseeable pedestrian’s use. Essentially, this duty of reasonable care requires that common areas, such as parking lots and sidewalks, be kept relatively free from snow and ice. (more…)
Some people love the winter and all the snow that comes along with it. To others, the burdens of snow removal and inclement weather make the season unbearable. Love it or hate it, snow and ice must be cleared from driveways, sidewalks and parking lots. In fact, owners and those in possession of property have a duty to keep walkways and parking lots safe for pedestrian use. If the failure to do so results in an Albany slip and fall and injury, the landowner or person or entity responsible for maintaining the property may held liable for injuries caused by slippery conditions caused by the presence of snow or ice.
In addition, if attempts to maintain the property aren’t done properly, a claim of negligence may also lie. While under New York law there is no duty to completely remove every inch of snow or ice, the effort and the result must have been such that “reasonable care” was exercised. Put another way, if, despite activity intended to remove snow, or treat ice, there is still what a jury would find to have been an unsafe condition for those walking on the surface, liability for injury will result. Further, if snow is removed from a parking lot or sidewalk in such a manner so as to create an unsafe condition, the landowner or those responsible for creating the condition will be liable for the injury and damages that results when someone falls. This principle applies to both commercial owners who clear snow from sidewalks and parking lots, and to private landowners who clear snow from property in a manner that causes danger on their own or an abutting property. (more…)
Those of us living in Albany and in the greater capital region know what it’s like to drive in extreme winter weather conditions. Blizzard conditions make travel difficult at times. While it’s always preferable to avoid driving during a storm, sometimes this can’t be avoided. Our daily lives place demands to get to work, or to pick up our children from school or daycare. And sometimes, despite the forecast, we are en route to a destination when the conditions suddenly change and we find ourselves faced with driving during snow fall that significantly reduces visibility. And, while we may slow our car to adjust to the conditions, many car accidents which cause serious personal injury are caused by careless conduct by a driver who fails to do the same.
If you are injured in such a situation, your Albany car accident attorney will need to prove that the other driver breached his duty of “reasonable care” to you, and that this caused the accident and your injuries. In the case of a sudden whiteout or snowstorm, this is a very fact-dependent analysis. The other driver must exercise a reasonable degree of care required given the circumstances then existing, meaning that he must pay attention to the conditions, to any change in the conditions and adjust his speed to a “reasonable speed” for those conditions. In addition, if he fails to ensure that his ability to see the road and other vehicles, his conduct may nevertheless not be found to be “reasonable,” if it can be shown that the reduced visibility was a substantial factor in bringing about the accident. (more…)