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Foreseeability and Proximate Cause

In New York, landowners generally owe a duty of reasonable care to people on their property, which requires that the property be maintained in a safe condition.  Maheshwari v. City of New York, 2 NY3d 288 (2004).

However, landowners are not insurers ensuring visitors’ safety.  Therefore, while a landowner is obligated to minimize foreseeable damages on his or her property, foreseeability is not the same as a duty.  Accordingly, once it is determined that a duty does exist, foreseeability will determine the scope of that duty.

The scope of the landowners’ duty is defined by past experience and the likelihood of conduct on the part of third persons, which is likely to endanger the safety of the visitor.

Consider Foreseeability when Evaluating a Premises Liability Claim

Generally, questions of proximate cause and foreseeability are to be resolved by the trier of fact, i.e., a jury.  Voss v. Netherlands Ins. Co., 22 NY3d 728 (2014).  However, under certain instances a court can find a lack of foreseeability as a matter of law. 

For example, in Abraham v. Chelsea Piers Management, Inc., 26 NY3d 963 (2015), it was alleged that the plaintiff-decedent drowned after trespassing onto one of the piers while intoxicated.  Prior to the incident, the decedent and several other individuals had been escorted off to the piers by the defendant’s employees.  The evidence indicated the plaintiff-decedent returned to the property and jumped over a locked gate before falling into the water and eventually drowning.  In reversing the trial court’s denial of defendant Chelsea Piers motion for summary judgment, the Appellate Division held that the plaintiff-decedent’s actions were not foreseeable and that the action should be dismissed.  The New York Court of Appeals affirmed the Appellate Division’s decision.

Based upon the Abraham decision, when evaluating a premises liability claim any evaluation must take into account whether the conduct on the part of the claimant was foreseeable.  Proper evaluation at the early stage of the claim will permit the insurer and defense counsel an opportunity to prepare an appropriate strategy to attempt and establish the lack of foreseeability which may result in a dismissal of the claim.


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