Was Owner of Apartment Building Liable for Damages?

Occasionally, as recited in a decision, the facts of a dispute boggle the mind. A recent case is illustrative.

On October 27, 2012, Steve Savitz attended a Halloween party hosted by Ari Taub at his apartment building, a former warehouse that had been converted into a residential rental building, owned by Lido Knitting, Inc. The building was equipped with a loading dock, which was used by the tenants for dropping off and picking up bulky items at the building. The loading dock area was lit by a 120-watt, switch-controlled spotlight mounted high on the back wall of the loading dock, which was illuminated at all times unless the building’s superintendent turned it off for maintenance purposes.

At the Halloween party, Savitz became engaged in a game, which eventually brought him into the loading dock area. At some point during the evening, the spotlight in the loading dock was turned off, and it remained off as partygoers engaged in a “zombie game,” which entailed partygoers dressed up as zombies scaring other partygoers in the loading dock area. As one of the partygoers dressed up as a zombie “attacked” Savitz as part of the game, he walked backward and eventually fell off the edge of the loading dock onto the street level, sustaining personal injuries.

Thereafter, Savitz filed a personal injury action against Lido and others. After discovery was completed, Lido moved for summary judgment dismissing the complaint-which the Court ultimately granted. Savitz appealed.

In the context of premises liability, a property owner is charged with the duty of maintaining the premises in a reasonably safe condition. In order for a property owner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective or dangerous condition upon the property, it must be established that the property owner affirmatively created the condition or had actual or constructive notice of its existence. And, in a premises liability case, a property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged dangerous or defective condition nor had actual or constructive notice of its existence.

Supreme Court properly granted Lido’s motion for summary judgment dismissing the complaint. Lido established, prima facie, that the loading dock was maintained in a reasonably safe condition and that it neither created nor had actual or constructive notice of the alleged dangerous condition. In opposition, Savitz failed to raise a triable issue of fact. Expert opinions that were conclusory and speculative were insufficient to raise a triable issue of fact.