Butler v. Rafferty
| Decision Date | 10 June 2003 |
| Citation | 762 N.Y.S.2d 567,792 N.E.2d 1055,100 N.Y.2d 265 |
| Parties | KATE L. BUTLER, an Infant, by WILLIAM C. BUTLER et al., Her Parents, Appellants, v. BRIAN F. RAFFERTY, Respondent, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Lewis B. Oliver, Jr., Albany, for appellants. Thuillez, Ford, Gold, Johnson & Butler, LLP, Albany (Debra J. Young and Donald P. Ford of counsel), for respondent.
The case before us involves the potential tort liability of a tenant-in-common. Plaintiff was injured when she fell off a bunk bed located on property co-owned by defendant. The sole issue is whether defendant can be held liable for plaintiff's injuries. Because defendant surrendered possession and control over the portion of the property where the injury occurred, we conclude that he may not be held liable, and therefore affirm the order of the Appellate Division granting defendant's motion for summary judgment.
In 1980, defendant bought a parcel of land containing a single-family dwelling and a barn. Between 1983 and 1986, defendant shared the residence with his sister, Maureen Rafferty, and her son, Patrick. Maureen and Patrick lived elsewhere for the next two years, and in 1988 moved back into the residence. To delineate their respective responsibilities with respect to the property, defendant and Maureen entered into an agreement. In writing, they agreed that Maureen would pay the monthly mortgage and homeowner's insurance for the next seven years, at which point defendant and Maureen would become co-owners of the property. They also agreed to share the expenses for maintenance and repair of the premises, and that major improvements would be undertaken only when both consented. Further, the agreement provided that Maureen and defendant would reside separately on the premises in areas they had identified to each other. They were to "live free from interference in the personal lives and affairs of [one another]" and "reside with or cohabit with whomever they choose." Finally, the agreement stated that defendant immediately would deed the property to himself and Maureen "as co-tenants." Maureen's lawyer was to hold the deed in trust and record it at the request of either party.
For the next three years, defendant lived in a loft in the barn while Maureen and her son occupied the residence. In 1991, Maureen married Matthew Keller and together they built an addition to the residence. The addition lay on its own foundation and had its own kitchen, living room, bathrooms and bedrooms. From then on, Maureen, Matthew and Patrick lived exclusively in the new addition, while defendant lived exclusively in the original residence. Shortly after completing the addition, Keller built a bunk bed and installed it in Patrick's room. The bed was made of wood and was affixed to the bedroom wall. It had one guardrail running along the side opposite the wall, but no railing along the foot or head, or along the side nearest the wall. Undisputedly, defendant had nothing to do with building the bed, installing it or paying for it.
In 1995, at the time in question, Patrick and some of his friends, including 15-year-old plaintiff Kate L. Butler, were watching a movie in Patrick's room. Plaintiff was sitting in the top bunk of the bunk bed. As she attempted to pass a tray of cookies to a friend sitting in the lower bunk, she fell, hit the floor and was injured.
By her parents, plaintiff sued Maureen, Keller and defendant to recover for her injuries. She alleged that because defendant was in possession and control of the premises, he owed her a duty of care that he breached by "negligently and carelessly designing, constructing and maintaining the bunk bed." Specifically, plaintiff contended that the bunk bed was unsafe because it did not have adequate railing to prevent a person from falling. Defendant moved for summary judgment, arguing that he could not be held liable because he was not in control of the portion of the premises where the accident occurred; that he had no role in designing, building or maintaining the bunk bed; and that plaintiff's own negligence caused her to fall.1
Supreme Court granted defendant's motion. The court ruled that although defendant was a tenant-in-common of the entire property, he had neither control over the area where plaintiff fell nor notice of the alleged dangerous condition.
A divided Appellate Division affirmed. The majority held that the agreement between defendant and Maureen "created the functional equivalent of separate apartments" and made defendant "an out-of-possession landlord with respect to the portion of the premises occupied by [Maureen] and her family" (291 AD2d 754, 755 [2002]). Applying the general rule that out-of-possession landlords are not liable for injuries resulting from the condition of the demised premises, the Court concluded that defendant exercised no control over Maureen's part of the property and therefore could not be held liable. The dissenters argued that even though the siblings had agreed to occupy exclusively certain portions of the property, defendant had not established as a matter of law that he had no control over Maureen's portion. The dissent emphasized that the certificate of occupancy identified the entire premises as a single-family home and that defendant alone maintained liability insurance on the entire structure.
Plaintiff now appeals from the Appellate Division order pursuant to CPLR 5601 (a), and we affirm.
There is but one issue on this appeal: whether defendant, as co-owner of the property, can be held liable for plaintiff's injuries. Plaintiff offers two arguments. First, she contends that liability can be predicated solely on defendant's status as a tenant-in-common of the property. Second, she argues that, assuming that such status is not by itself sufficient to impose liability, defendant can be held liable because he exercised possession and control over the premises and had notice of the dangerous condition. In response, defendant contends in essence that because he did not have control over Maureen's portion of the property he cannot be held liable. Further, defendant argues that he had no notice of the dangerous condition and did nothing to cause plaintiff's injuries.
The parties agree that defendant is a tenant-in-common. That is where our analysis begins. A tenancy-in-common represents interests in property held individually by two or more persons (generally known as cotenants). The distinguishing feature of this form of ownership is the right of each cotenant to use and enjoy the entire property as would a sole owner. This undivided interest (usually called "unity of possession") is a right enjoyed by all the cotenants whether or not they are in actual possession of the premises (see Myers v Bartholomew, 91 NY2d 630, 632-633 [1998]
; Jemzura v Jemzura, 36 NY2d 496, 503 [1975]; see generally 13 Warren's Weed, New York Real Property, Tenancy in Common §§ 1, 3 [4th ed]; 7 Powell, Real Property §§ 50.01, 50.03).
For purposes of imposing personal liability for defective conditions on the premises, a cotenant's right to use and enjoy the entire premises translates into a duty to maintain it safely. Indeed, because the common-law doctrine of tenancy-in-common presumptively gives each cotenant full possession of the entire premises, a defective condition causing injury to a third party results in joint and several liability as to each cotenant (see Simmons v Everson, 124 NY 319, 323-324 [1891]; Kramer v Stone, 176 App Div 549, 550 [1st Dept 1917]; see generally Restatement [Second] of Torts § 878, at 323; 3 Harper, James and Gray, Torts § 10.1, at 14 [2d ed 1986]).
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