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What Are Your Rights If You Are Injured On Someone Else’s Property?

It can happen…you become involved in an accident or sustain an injury when you are on someone else’s property. What are your rights? What can you expect? At Anderson, Moschetti and Taffany, we are pleased to provide the following information, which we hope may be of some use to in the event you are injured while on someone else’s premises, whether through a slip and fall accident or some other event. This information may be useful in helping you decide whether you should seek the services of an attorney to obtain compensation.

Under New York law, the liability of an owner or possessor of land is based upon the duty to exercise “reasonable care” under the circumstances. Historically, the legal status of the injured person played a significant role in the determination of whether he or she could bring a claim if injured on another’s property. For example, if the injured person was a trespasser, as opposed to someone who was lawfully upon the premises, liability for injury might be denied. However, these distinctions of legal status have been abolished; but at the same time, the jury is still permitted to consider the individual’s legal status as one of several factors in evaluating the reasonableness of the property owner’s conduct.

As to when an “owner” or “possessor” of property may be held liable for injury occurring on his or her property, liability is predicated upon ownership, occupancy, control or what is known as a “special use” of the property.  An attorney considering whether a claim can be brought should be knowledgeable of the case law decisions that collectively provide the “rules” regarding the potential liability of the property “owner” or “possessor.”

The cause of the injured individual’s accident must result from a “defective condition”, which may be an icy sidewalk, broken step or any one of numerous other conditions that may be defined as constituting a “defective condition.”

In addition to the accident resulting from an unsafe or defective condition, the property owner or possessor must also be shown to have actual and/or constructive notice or knowledge of the condition, or alternatively, be shown to have created the condition.

With respect to “actual” notice or knowledge, through a process known as “discovery”, the attorney representing the injured individual (the “plaintiff”), must be able to establish that the owner/possessor himself, or one of his “agents” (person in a position of authority or responsibility) knew about the “defective condition” sufficiently in advance of the plaintiff’s accident to have corrected the condition, or at least warned of its existence. How much time in advance of the accident is governed by a body of case law, the result of hundreds of court decisions that have become the subject of appellate court pronouncements.

If “actual notice or knowledge” cannot be shown, then the plaintiff’s attorney may have to rely upon proving “constructive notice or knowledge” of the defective condition. This involves establishing, through the discovery process, that the condition existed for a long enough period of time prior to the plaintiff’s accident that the property owner/possessor had a “reasonable opportunity” to have remedied the situation, but failed to do so. Once again, how much time the property owner/possessor would have to remedy the condition, or at least warn of it, has been shaped by the appellate courts in New York and the attorney handling the case should have an understanding and appreciation of these “rules.”

Finally, if the property owner/possessor himself “created” the condition, the requirements of notice no longer apply, for the simple reason that if he creates the condition, he is held to be knowledgeable about it and therefore need not be afforded an opportunity to remedy, or warn about it.

Just as the property owner/possessor can be held legally responsible for creating a defective condition, or failing to remedy or warn about it, once he is aware of it, the injured individual can also be held partially, and in some cases, completely responsible for his own injuries. This concept is known as “comparative fault” and as suggested by its name, constitutes a “comparison” of the fault of the defendant property owner/possessor to that of the injured plaintiff. Factual circumstances that have been held to represent some degree of comparative fault include the failure to observe a condition that could have been seen, the failure to avoid a condition that was seen, encountering a defective condition over and over again, as well as a myriad of other factual circumstances.

It is up to the jury, typically, to “compare” the fault of both the property owner/possessor defendant with that of the injured plaintiff and to then assign a percentage of legal liability to each. In some cases, the attorney for one of the parties will bring a motion, prior to trial, in an effort to have the Court make such a determination, “as a matter of law”, arguing that the issue is so clear cut that no factual issues remain to be decided and that all remains is application of settled legal principles to the facts of the case. However, courts favor allowing the injured plaintiff his “day in court” and therefore, such legal determinations in advance of trial remain the exception to the rule.

Another issue that the attorney representing the injured individual must consider before taking the case on is the applicable period of time within which to bring a claim, known as the Statute of Limitations.

While a claim against a private owner/possessor must generally be brought within three (3) years of the date of the accident, if the proposed defendant owner/possessor is a municipality, such as a city, county or the state, a claim must be brought within 90 days of the accident; following by institution of suit, generally, within one (1) year and ninety (90) days after the accident. Specific laws control the form and the contents of how the claim is made, as well as the specific periods of time within which a claim must be made and suit thereafter filed.

There are further limitations involved in bringing a claim against most municipalities, in the form of what are known as “prior written notice” laws. For example, if the claimed defect is within a sidewalk or street owned or controlled by a municipality, almost invariably the “prior written notice” law, typically a part of the municipal code, will require that the specific unsafe condition or “defect” alleged to have caused the plaintiff’s accident and injuries must have become known to the municipality by communication through written notice of its existence prior to the accident. The law will prescribe what office or department within the municipality must receive such notice.

Finally, among other limitations to the right of an individual to recover for injuries sustained as a result of a “defective condition”, New York State has a statute (General Obligations Law §9-103) that limits the liability of an “owner, lessee or occupant” of undeveloped lands to persons who are hunting, trapping, fishing, hiking, horseback riding, bicycling, snowmobiling, dog training, canoeing, hang gliding, cross country skiing, tobogganing, sledding, spelunking or operating a motorized vehicle for recreational purposes. Except where the user paid for the right to undertake one of these activities (and with a few other exceptions contained within the statute), the landowner/possessor will not be held legally responsible for an unsafe condition on his land, where injury results.

The personal injury attorneys at Anderson, Moschetti & Taffany are here to help you when you’ve been injured as the result of an accident on another’s property. We would be glad to answer questions and to help you determine whether you are entitled to receive compensation for pain and suffering, lost wages, benefits or other damages.

Feel free to call us today at (518) 785-4900 if you have been injured or have any questions, or contact us for a free consultation.


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