Monday, June 6, 2016
Special Use, Special Responsibilities
Last year, I argued a matter where my client tripped and fell on a broken concrete pedestrian ramp in front of a two story mixed use building, leaving her with a severely broken ankle. When the building owner and the tenant moved for summary judgment, I opposed it by citing the "special use" doctrine, and won my client a mid-six figure settlement
If you own a commercial or mixed use property, you should know that people making personal injury claims against you have the burden to show that you caused, created or had “actual or constructive notice" of condition which caused the injury. But, most owners don't realize that there is a third category for special circumstances that is a "special" exception for curb cuts and ramps that provide access from public property onto your private property.
A landowner is liable for a defect that causes a pedestrian if (1) the landowner created the defect or (2) the ramp was constructed for its special use.
This is called the “special use doctrine.” It is a long-standing exception to the general rule that municipalities are liable to maintain public streets, and imposes liability on owners of private property that do not maintain safe areas. The special use doctrine applies to structures built on public property and extends onto private property, like ramps that take you from a sidewalk into a building. The reason for the rule is to charge the party who benefits from the land or structure to maintain the used property in a reasonably safe condition.
The “special use doctrine” imposes a duty on both landlord and tenant to maintain the ramp in a reasonably safe condition because both receive the benefit of using the ramp. Since many buildings required handicapped access via ramps, it is important that owners and tenants maintain this "special use" and avoid liability.
So make sure you pay "special" attention!
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.