Daily Development for Friday, December 16, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu LANDOWNER LIABILITY; COTENANTS: Cotenant who did not control portion of house where accident occurred, could not be held liable for injuries sustained there. Butler ex rel. Butler v. Rafferty, 792 N.E.2d 1055 (N.Y. 2003). Plaintiff, a minor, was injured when she fell off a bunk bed located on property co-owned by defendant. The sole issue before the court was whether defendant, who was a cotenant owner of the premises but had divided possessory rights with another cotenant, could be held liable for plaintiff's injuries. The Court of Appeals of New York held that because defendant surrendered possession and control over the portion of the property where the injury occurred, he could not be held liable, affirming the granting of a summary judgment motion. The Court acknowledged that a cotenant's right to use and enjoy the entire premises translates into a duty to maintain it safely. This does not mean, however, that all cotenants will inevitably be liable any time an injury occurs on the premises. Although cotenants generally have the right to use and enjoy the entire property, they may contract otherwise. In the event of such an agreement, liability for personal injuries will fall only on the tenant who exercises possession and control over the area in question. The Court further concluded that a cotenant who enjoys the right to use and possess the entire premises will be jointly and severally liable for any injuries resulting from a defect on the premises. Again, however, the court noted that this rule is subject to an exception where the cotenant has surrendered possession and control of the portion of the premises where the injury occurred. The Court predicated resolution of the appeal on whether defendant exercised possession and control over plaintiff's segment of the property. Defendant relied on a contract by which he and the other cotenant agreed to live in separate parts of the premises, entirely free from interference by one another. Moreover, defendant exercised no supervision over the other sphere and the single doorway between his living area and that of the cotenant was blocked by a refrigerator. In response, plaintiff contended that defendant's control was established primarily through a clause in the contract by which defendant and the cotenant agreed to share the expenses for maintenance and repair. The Court concluded that although the provision obligates them to contribute money for general upkeep, it does not establish, and there was no evidence, that defendant was ever permitted to enter the cotenant's premises without her permission and that he in any way had exercised possession or control over the cotenant's portion of the property. Comment 1: The cotenancy arose when a brother and sister agreed to share a premises that the brother had purchased. The parties hired lawyers and entered into a written agreement that provided that the parties would each occupy their own portion of the premises, "free from interference with the personal lives and affairs of [one another]." They agreed to share maintenance expenses. Sister, who apparently had paid nothing originally, agreed to pay mortgage and homeowner's insurance payments for seven years. Brother delivered a deed of a cotenancy interest to sister, but the deed was held in escrow by sister's attorney. Interestingly, over time, the parties changed the areas that they occupied. Sister brought in a living companion who built an addition to the house on the property, and her household moved into the addition. The injury occurred to a guest of sister's minor son, injured when she fell from a built-in bunkbed within the new addition that was allegedly negligently designed. The court is vague about whether this injury occurred while the sister was still under obligation to pay "homeowner's insurance." In any event, it appears that defendant had his own policy of liability insurance, and it was into that deep pocket that plaintiff apparently was trying to reach. Perhaps because of the insurance, several judges on the lower appeals panel had dissented from the majority opinion upholding the granting of the summary judgment motion. Comment 2: The editor can't argue with the result on the facts presented. Note that it appears that this was not an issue involving a defect that arguably was on the commonly owned premises prior to the division of possessory rights, but was installed by the cotenant in an area that had been designated for that cotenant's possession. This certainly helped to clarify the issue. Note also, that in some jurisdictions there is case law that a tenant should be treated as a co-insured when the lease provides that the landlord shall obtain property insurance (and, presumably, the co-insured status would extend to any liability insurance that is part of the coverage). There are even some cases where the lease is silent but the parties understand that the landlord is obtaining the insurance. A similar argument could be made here if the parties had agreed that the sister would pay certain identified expenses and the brother would pay others. This doesn't mean, of course, that the liability follows the insurance, although there are those in the plaintiff's bar that pretty much appear to take that as a given, and some of them even get to be Court of Appeals judges. But in this case it might have meant that a suit against sister would have been enough to reach the insurance. Comment 3: In these days when people frequently undertake legal relationships without the formal assistance of a trained lawyer, it is refreshing to see that these parties, who had the good sense to find a lawyer to document their relationship, were rewarded when the lawsuit came. Had they not clearly delineated their respective possessions, this might have been a much tougher case. Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. 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