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PLAINTIFF, WHO WAS INTOXICATED AND TRESPASSING, WAS INJURED FALLING THROUGH AN OPENING IN THE FLOOR OF A HOUSE UNDER CONSTRUCTION; THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S PRESENCE WAS FORESEEABLE AND PLAINTIFF’S INTOXICATION WAS NOT A SUPERSEDING CAUSE AS A MATTER OF LAW; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff, who was intoxicated, entered defendants’ construction site at 3:00 am and fell through an opening in the floor of a house under construction. Because defendants were aware of trespassers entering the site in the past, there was a question of fact whether the accident was foreseeable. The fact that plaintiff was intoxicated was not a superseding cause, although it may speak to comparative negligence:

… [A] triable issue of fact exists as to whether plaintiff’s presence on the property was foreseeable. The testimony … confirmed that it was common knowledge that people would routinely walk through houses still under construction. On this record, reasonable persons could disagree as to whether it was foreseeable for plaintiff to be on the subject property and whether defendants reasonably secured the property, thereby precluding summary judgment to defendants on this ground … . …

“An intervening act will be deemed a superseding cause and will serve to relieve [a] defendant of liability when the act is of such an extraordinary nature or so attenuates [the] defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” … . Here, plaintiff had never been to the property before, and defendants did not establish that he either knew or should have known that such conduct was dangerous … . Further, there are triable issues of fact as to whether there was a no trespassing sign on the property, whether the property was properly secured to prevent entry and even whether the floor opening was covered. Although defendants’ expert opined that plaintiff was extremely intoxicated when he entered the property, [plaintiff’s friend] did not observe plaintiff having any difficulty walking. Plaintiff’s alcohol impairment may well have played a significant role in plaintiff’s accident for comparative fault purposes, but that fact does not exonerate defendants from liability as a matter of law … . Desroches v Heritage Bldrs. Group, LLC, 2020 NY Slip Op 05992, Third Dept 10-22-20

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