This appeal arises from an action in which plaintiff sought damages for injuries she sustained when she tripped and fell as a result of broken concrete located in the driveway portion of a sidewalk. The issue on appeal is which party had a duty to correct the large area of broken concrete that constituted a dangerous and long-standing condition. The driveway is located outside of a baseball stadium. The property is leased to Bison Baseball (“Bison”) from the City of Buffalo. Immediately next to the driveway is a parking garage owned by Seneca One Realty LLC (“Seneca”) whom contracted with Allpro Parking (“Allpro”) to service and operate the parking garage. In the original action, the Supreme Court of Erie County, granted Seneca and Allpro’s motions for summary judgment, and granted in part Bison’s summary judgment. The plaintiff and Bison both appealed the order.
The court rejected Bison’s contentions about the negligence claims against them, holding that although generally liability for dangerous and defective conditions to public sidewalks is placed on municipalities, there are circumstances that merit exceptions. Some of the exceptions are: (1) when the sidewalk is constructed in a special manner for the benefit of the abutting owner; (2) where the abutting landowner negligently constructed or repaired the sidewalk; and (3) where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.
In this case, the dangerous condition existed on the portion of the sidewalk that abuts the property owned by Seneca, but is also located in the apron of the driveway that provides access to the property leased by the Bison defendants. The court concluded that the Bison defendants failed to establish as a matter of law that they lacked access to and the ability to control special use of the driveway and did not create the defect by any alleged special use. Rather, based on the evidence it was plausible to conclude that the driveway was constructed for the exclusive use and benefit of the Bison defendants’ leased property. The evidence highlighted that the only places that could be accessed by the driveway were the stadium and the surface parking lot, both of which were located on the property leased by Bison.
The court also concluded that the lower court properly dismissed the common-law negligence claims against Seneca and Allpro but erred in dismissing those claims against them that were based on The Charter of the City of Buffalo (“the charter”). The court agreed that although Allpro employees may have barricaded the area of the dangerous condition on occasion, such conduct did not create a common law duty of care. The court disagreed with Seneca and Allpro’s contention that they did not have a duty under the charter which explicitly charged all owners or occupants abutting a public street with the duty to maintain and repair the sidewalk. It held that both Seneca and Allpro as the abutting owner and occupant, respectively had a duty under the charter, despite the dangerous condition being situated on the driveway portion of the sidewalk. Lastly, the court also affirmed the dismissal of Bison defendants’ cross claim for contractual indemnification as it believed that the acts or omissions at issue regarding the property were covered by the lease.
1 N.Y.S.3d 615 (4th Dep’t 2015)