NY Court of Appeals Holds Landlords Cannot Avoid Liability for Snow and Ice on Sidewalks

Xiang Fu He v Troon Mgt., Inc. 2019 NY Slip Op 07643

New York’s Court of Appeals reversed the Appellate Division and held that in New York City, out-of-possession landlords cannot avoid liability to persons injured on snowy or icy sidewalks by delegating responsibility to a tenant or snow removal company.

Section 7-210 of the Administrative Code of the City of New York imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition. Under this duty of care, a subject owner is liable for personal injury claims arising from the owner’s negligent failure to remove snow and ice from the sidewalk. The Code makes no exception for out-of-possession landowners and so the Court held that the duty applies with full force notwithstanding an owner’s transfer of possession to a lessee, or maintenance agreement with a private contractor.

Plaintiff Xiang Fu He sued, among others, owners of a parcel of land in New York City for personal injuries arising from a slip and fall on the sidewalk abutting the property. The complaint alleged that while employed by a nonparty lessee of the building on the property, plaintiff suffered injuries after falling on ice that had accumulated due to defendants’ negligent maintenance of the abutting sidewalk, owned by the City of New York.

Supreme Court denied defendants’ motion for summary judgment dismissing the complaint, rejecting their arguments that out-of-possession landowners are not liable for personal injuries based on negligent sidewalk maintenance, and, under the lease terms, the lessee agreed to maintain the abutting sidewalks. The Appellate Division reversed, granted defendants’ motion for summary judgment, and dismissed the complaint, on the basis that the out-of-possession landowners had no contractual obligation to maintain sidewalks, and the presence of snow and ice does not constitute a significant structural or design defect for which such owners are responsible. The Court of Appeals granted leave to appeal.

Plaintiff argued that, with certain exceptions, section 7-210 displaces the applicable common law, imposing a nondelegable duty of care and shifting all liability for sidewalk-defect-related personal injuries from the City of New York to owners of abutting property, like these defendants. Plaintiff maintained that since triable issues of fact remain as to defendants’ liability regarding plaintiff’s personal injury claims, Supreme Court properly denied the motion. Defendants countered that they were entitled to summary judgment because, when a lessee has agreed to keep the premises in good repair, as in this case, an out-of-possession landowner retains liability only for structural defects inside the premises, whereas the lessee assumes liability for transient conditions, including those arising from sidewalk maintenance.

The Court of Appeals agreed with plaintiff that defendant owners were subject to the nondelegable duty imposed by section 7-210, which exposes them to potential liability for injuries allegedly caused by their failure to properly remove snow and ice from the sidewalks abutting their property as alleged in the complaint, and that triable issues of fact preclude summary judgment for defendants.

Section 7-210 of the Administrative Code of the City of New York provides, in relevant part,

“a. It shall be the duty of the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition.

“b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury . . . proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include . . . the negligent failure to remove snow, ice, dirt or other material from the sidewalk. This subdivision shall not apply to one-, two- or three-family residential real [*2]property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210 [a]-[b]).

By its terms, “section 7-210 unambiguously imposes a duty upon owners of certain real property to maintain the sidewalk abutting their property in a reasonably safe condition, and provides that said owners are liable for personal injury that is proximately caused by such failure.” In other words, subject landowners are not strictly liable for personal injuries resulting from incidents on abutting sidewalks because section 7-210 adopts a duty and standard of care that accords with traditional tort principles of negligence and causation.

Defendants in this cases did not dispute the requirements of section 7-210, but instead argued the out-of-possession landowner rule, under which landowners who have contracted out the responsibility for maintenance of their property do not assume liability for breach of that duty, to a duty to maintain premises owned by the City. “This interpretation of section 7-210 disregards our first-order rule that the text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning. Here, the Administrative Code could not be clearer. Section 7-210 applies to every owner of real property abutting any sidewalk and makes no distinction for those owners who are out of possession. The fact that this section expressly excludes certain owner-occupied properties from its reach (§ 7-210 [b]) demonstrates that defendant’s reading is untenable because, if the City Council meant to exclude a class of owners, it knew how to do so.”

“Other provisions of the Administrative Code support our conclusion that the New York City Council intended the word “owners” to mean all owners of abutting property, and not merely owners in possession or those charged with control of the abutting premises. Section 7-211, signed into law the same day as section 7-210, requires that an owner of real property subject to section 7-210 (b) carry personal injury and property damage liability insurance for injuries proximately caused by the failure to comply with the duty of maintenance under section 7-210. It further states that the City will not be liable for such injury if the owner failed to carry insurance as required by this section. There would be no need to impose a requirement to carry insurance if, as defendants argue, section 7-210 did not impose both a duty and civil liability upon an out-of-possession landowner. Indeed, if the City Council had intended that non-owners could be liable under section 7-210, it would have extended the insurance mandate in section 7-211 to those with an interest in the premises other than a freehold.”

Read in context, the phrase “owner of real property” is clear and unambiguous and cannot be read to exclude out-of-possession landowners, held the Court. The term “owner” means all owners, regardless of their out-of-possession status and whether the owner has contracted with the lessee or another to keep the sidewalk in reasonably safe condition.

Prior to the effective date of section 7-210, New York City was liable for all personal injuries caused by the negligent failure to properly maintain the sidewalks. Section 7-210 “was enacted for the purpose of transferring tort liability from the City to certain adjoining property owners as a cost-saving measure”, because it was appropriate “to place liability with the party whose legal obligation it is to maintain and repair sidewalks that abut them—the property owners.”

“The purpose underlying the enactment of section 7-210 is to incentivize the maintenance of sidewalks by abutting landowners in order to create safer sidewalks for pedestrians and to place liability on those who are in the best situation to remedy sidewalk defects,” the Court recited. “Accordingly, a nondelegable duty incentivizes owners to make decisions that optimize the safety and proper care of sidewalks, reducing harm to third parties and litigation costs. This interpretation of the Code not only is mandated by the language and supported by the legislative history, but also promotes the City Council’s intent to place the duty squarely on the shoulders of those in the best position to maintain sidewalks in a reasonably safe condition and to insure against loss. Otherwise, if owners may delegate this responsibility and attendant liability, then they have no incentive to ensure that the delegatee is competent and properly insured.”

“To be clear,” noted the Court, “nothing in section 7-210 prevents a landowner from entering into a maintenance agreement with tenants and third parties. While an owner can shift the work of maintaining the sidewalk to another, the owner cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7-210.”

If litigation ensues, the landowner generally has an indemnification action against a tenant or lessee who covenants to maintain the property, observed the Court.

The Court of Appeals concluded that “The Appellate Division erroneously reversed Supreme Court and granted defendants summary judgment on the basis that the subject property owners were out of possession and, therefore, had no duty to keep the abutting sidewalks clear and no civil liability to persons injured by the negligent failure to remove snow and ice. For the reasons stated, we hold that section 7-210 abrogates the common law, imposes a nondelegable duty of care, and shifts civil liability from the City to out-of-possession owners like defendants.”

Comment: Because, in the real world, these kind of lawsuits (personal injury cases resulting from falls on icy sidewalks in New York City) ultimately come down to the question of whether the landlord’s insurance or a commercial tenant’s insurance ultimately pays the plaintiff, this decision means that in most cases, the landlord will remain liable to plaintiff but an indemnity clause in the lease will require the tenant’s insurance to indemnify the landlord.