Here is some important information for landlords to remember – with special uses come special responsibilities! Last year, a firm attorney in New York argued a matter where our client tripped and fell on a broken concrete pedestrian ramp in front of a two-story mixed-use building, leaving her with a broken ankle.
When the building owner and the tenant moved for summary judgment, I opposed it by citing the “special use” doctrine, and won our 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 the 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 damage to 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” in New York. 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 require handicap access via ramps, it is important that owners and tenants maintain this “special use” and avoid liability.
So make sure you pay “special” attention!