You are here: / / PLAINTIFF, WHO WAS INTOXICATED AND TRESPASSING, WAS INJURED FALLING THROUGH...

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

You might also like
CLAIMANT DELIVERY DRIVER WAS AN EMPLOYEE OF A BUSINESS LOGISTICS COMPANY WHICH ARRANGED DELIVERIES FOR ITS CLIENTS; CLAIMANT WAS THEREFORE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
THE EVIDENCE DEMONSTRATED THE DEFENDANT PUNCHED THE POLICE OFFICER AFTER THE DEFENDANT WAS SPRAYED IN THE FACE WITH PEPPER SPRAY; THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE TO THE ASSAULT CHARGE; TWO JUSTICE DISSENT (THIRD DEPT).
BUILDING AND HOME INSPECTORS WERE EMPLOYEES OF ENGINEERING FIRM.
CONTRACTOR OWED A DUTY OF CARE TO PLAINTIFF OVER AND ABOVE THE OBLIGATIONS IN THE CONTRACT BETWEEN THEM.
Question of Fact Whether Hospital Vicariously Liable for Actions of Non-Employees
INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).
“Head Waiter” with Substantial Managerial Duties and “Wine Steward” Whose Duties Did Not Include Serving Customers Were Not Entitled to Share in the Servers’ and Bus Boys’ Tip Pool
THE PETITIONER SEEKING TO MODIFY A CUSTODY ARRANGEMENT MUST MAKE A THRESHOLD SHOWING THAT THERE HAS BEEN A CHANGE IN CIRCUMSTANCES SINCE THE LAST CUSTODY ORDER WAS ISSUED; HERE, FATHER’S WANTING MORE PARENTING TIME TO DEVELOP A CLOSER RELATIONSHIP WAS NOT A CHANGED CIRCUMSTANCE (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FATHER’S CHILD SUPPORT OBLIGATIONS CONTROLLED BY THE JUDGMENT OF DIVORCE,... NEITHER THE “HABIT” NOR THE “ERROR IN JUDGMENT” JURY...