Legal Alerts

New York Team’s Win Limits Scope of Property Owners’ Duties to Workers for Hazards Inherent in Their Work

New York, N.Y. (May 9, 2024) - New York Partners Jennifer Oxman and Andrew Harms recently secured dismissal of a personal injury plaintiff’s complaint on summary judgment in Queens County, with a state judge accepting their argument that a porter who allegedly tripped and fell on loose wood in a stairwell had no cause of action against the property owner because it was his job to clean the stairs in the first instance. The porter was not an employee of the property owner, but rather an employee of a property management company. Therefore, the workers compensation bar did not apply to the employee’s claims.

In a four-page decision, Justice Chereé A. Buggs of Queens County Supreme Court found that plaintiff’s duties as a porter included cleaning the stairwell and that he saw and cleaned loose pieces of wood on occasions prior to his accident. Justice Buggs held that while the wood debris likely came from an “outside source”, i.e. a contractor performing work at a neighboring building, the source of the debris was not relevant. Rather, what mattered was the fact that the hazard upon which plaintiff tripped was “inherent in or related to” plaintiff’s work responsibilities. By contrast, Justice Buggs held that the contractor who allegedly was the source of the wood was not entitled to summary judgment under the same legal theory because it arguably caused and created the hazard upon which plaintiff tripped.

Facts of the Case

The plaintiff, who was 25 years old on the date of loss, worked as a porter for the property manager of the defendant building owner. His general duties as a porter included keeping the premises clean, including debris on the exterior stairwells of the subject buildings. The plaintiff testified that prior to his accident, wood debris was piled into dumpsters by the contractor working at the neighboring property. When the dumpsters overflowed, pieces of wood would get blown in front of his building, including onto the stairwell leading to the basement of the subject premises. The plaintiff had cleaned wood from the stairs on prior occasions; he also complained to his supervisor and employees of the contractor about the overflowing debris.

On the date of loss, the plaintiff was assigned to perform a task in the basement of the subject building and took the exterior stairs to reach his destination. He claimed that he tripped and fell on loose wood debris on the stairs that he believed came from the nearby dumpsters. The plaintiff fractured his ankle, requiring open reduction internal fixation, and claimed a lifetime disability due to resulting Complex Regional Pain Syndrome.

The plaintiff’s supervisor confirmed that the scope of plaintiff’s responsibilities included generally cleaning the exterior stairs of the building, and that when he found plaintiff on the stairs immediately after the accident he saw no wood or debris, as the plaintiff claimed.
The Court’s Decision

Citing Rojas v. 1000 42nd St., LLC, 159 AD3d 1024, 1025 (2d Dept. 2018), Justice Buggs reiterated that a landowner “need not guard against hazards inherent in the worker’s work, hazards caused by the condition the worker is engaged to repair, or hazards which are readily observed by someone of the worker’s age, intelligence, and experience.” The court disregarded plaintiff’s argument that, since the debris came from an outside contractor, and since plaintiff had given notice about the loose debris to both his supervisor and the contractor, that the case fell beyond the scope articulated in Rojas. The court held that the owner owed no duty to the plaintiff in these circumstances.

The last piece of Justice Buggs’ decision correctly reasoned that “while there was no triable issue of fact as to whether [plaintiff’s] job responsibility included cleaning the subject exterior staircase, the third party contractor would still owe a duty to if it created the defect that caused plaintiff’s injury. . . the contractor failed to submit sufficient evidence to establish prima facie that they did not create the subject defect.” 


When property owner employees such as a porter or a superintendent claim a personal injury that occurred during their work, the first remedy against a personal injury lawsuit should be the workers compensation bar. However, when the workers compensation bar is not readily available because the employee works for a separate company, such as a property manager, the above defense needs to also be considered because if the accident occurs from hazards inherent to the worker’s work and is readily observable, the property owner’s duty is entirely eliminated.

For more information on this decision, contact the attorneys involved. Visit our General Liability Practice page to learn more about our capabilities in this area.

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