Sutera v. Go Jokir, Inc., 200

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation86 F.3d 298
Docket NumberNo. 200,D,200
PartiesPamela SUTERA, and James Sutera, Plaintiffs-Appellants, v. GO JOKIR, INC., Defendant-Appellee. ocket 95-7222.
Decision Date17 June 1996

Howard B. Felcher, New York City (Felcher & Felcher, New York City, of counsel), for Plaintiffs-Appellants.

Andrew Zajac, Jericho, New York (Ross P. Masler, Fiedelman & Hoefling, Jericho, New York; Jacobowitz, Garfinkel & Lesman, New York City, of counsel), for Defendant-Appellee.

Before NEWMAN, Chief Judge, CARDAMONE and CABRANES, Circuit Judges.

CARDAMONE, Circuit Judge:

This diversity tort action between plaintiffs, residents of Florida, and defendant, a New York corporation, arises from a slip-and-fall accident in a suburban shopping mall. The defendant is the owner of an easement in the parking lot where the fall occurred. An easement is an interest in land giving its owner the right to enjoy a limited use in the land of another, free from the interference of third persons or even from the owner of the land itself. As one might suspect, exercising the rights given by an easement has a price. Here that price is that the owner of the easement assumed a duty of due care towards third persons.

The plaintiffs are Pamela and James Sutera. They appeal from a decision of the United States District Court for the Southern District of New York (Sweet, J.) that granted summary judgment in favor of the defendant, Go Jokir, Inc., the owner of the easement.

BACKGROUND

The facts are relatively straightforward. The 40-year-old plaintiff, Pamela Sutera, was employed as a police radio dispatcher by the Village of Spring Valley, New York. On March 17, 1993, accompanied by her lieutenant, she drove to the Spring Valley Civic Center to pick up uniforms. Returning to the Village Police Department, located at 200 North Main Street, she parked in the parking lot. After exiting her auto, and while walking towards her place of employment, she slipped and fell on a mound of ice covered by snow. As a result, she alleges, she suffered back injuries and incurred damages. Mrs. Sutera later underwent several surgical procedures for a herniated disc.

The parking lot where plaintiff fell was on property owned by the Village of Spring Valley. The parcel, known as lot 2, was one part of a subdivision of four lots previously owned by a developer, Countax Realty Co. More than two years before plaintiff fell, on August 23, 1990, Countax executed a declaration of reciprocal easements and covenants describing the four lots and providing for their integrated use as a shopping center and office complex. This declaration and a corresponding subdivision plat were filed in the County Clerk's Office in Rockland County, New York.

The declaration stated that each lot was subject to an easement for the use of certain portions of the complex as common areas. The parking lots--described in the subdivision plat--were part of the defined common areas. Owners would be allowed--along with their employees, customers, and others--to use the parking areas located on the other owners' parcels for parking, pedestrian passage, and for the specified individuals' "general use, comfort, and convenience." The declaration also gave the owners a right of self help, allowing each to perform any obligations that another owner failed to perform.

Section 4.1(b) of the recorded document provided that the owners "jointly shall perpetually preserve the shopping center" (emphasis omitted). "Preserve" was defined in § 4.1(a) as the obligation to maintain and manage the common areas "in conformity with the best standards with respect thereto as recognized and practiced in first class shopping center/office complexes" and included the obligation "to keep the parking area ... cleared of snow and ice" (emphasis omitted). The declaration further provided in § 4.1(d) that were a municipal corporation to become an owner, then the municipal corporation would be required to "preserve" the complex--including clearing snow and ice from the parking areas--and would bill the other owners for their proportional shares. At the election of the municipality and upon notice to the other owners, however, the The declaration also prescribed that each owner would carry liability insurance, naming all the owners as insureds, covering claims of personal injury from conditions occurring on its property, including any portions designated as common areas. All the obligations set forth in the declaration were to be construed as covenants running with the land.

municipality could cease to perform these maintenance duties, in which case the owners would jointly "preserve" the complex.

On February 1, 1991 Countax conveyed lot 2 to the Village of Spring Valley. Four months later, on May 31, Countax transferred the remaining parcels--lots 1, 3, and 4--to defendant Go Jokir. Go Jokir insists it has never undertaken any maintenance activities on lot 2. Any removal of snow and ice from the parking area apparently has been performed by the Village of Spring Valley.

After her March 1993 accident, Mrs. Sutera filed a workers' compensation claim because the injuries occurred in the course of her police department employment. Her compensation from the Spring Valley Police Department included several months' full pay and ongoing disability payments. On February 8, 1994 she and her husband, James Sutera, filed the instant complaint against Go Jokir in the Southern District of New York. The first cause of action alleges that Go Jokir, through its negligence, failed to correct a hazardous situation in the parking lot at 200 North Main Street and thereby caused the various injuries arising from plaintiff's fall. The second cause of action alleges James Sutera's loss of consortium.

Following the completion of pretrial discovery, Go Jokir moved for summary judgment on the ground that it owed no duty of care to plaintiff under New York law. The plaintiffs cross-moved for partial summary judgment, arguing that defendant owed a duty under the terms of the easement document and as an owner of the dominant estate. The district court granted defendant's motion for summary judgment and denied the cross-motion. It reasoned that although an easement holder ordinarily has a duty to keep an easement in repair, under the terms of the easement document the municipality was responsible for maintaining its own lot. From a judgment in favor of defendant entered on January 17, 1995, plaintiffs appeal. We reverse.

ANALYSIS

We review the decision granting summary judgment de novo, viewing the record in the light most favorable to the non-moving party, see Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993), and giving no deference to the district court's determination of New York law, see Salve Regina College v. Russell, 499 U.S. 225, 231-34, 111 S.Ct. 1217, 1221-23, 113 L.Ed.2d 190 (1991). Instead, it is our task to ascertain and apply New York law. See West v. American Tel. and Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940).

Two questions of that state's law are presented by this appeal: the first is whether Go Jokir, as holder of the dominant tenement, owed a duty of reasonable care to the injured plaintiffs; the second is, if so, whether a covenant requiring the municipality to clear snow and ice from the parking areas abrogated that duty. Although it appears that the Court of Appeals, New York's highest court, has not addressed these precise questions, "[a] state is not without law save as its highest court has declared it." Id. at 236, 61 S.Ct. at 183. Rather, New York's decisional law persuades us that its courts would, under the instant circumstances, impose a duty of reasonable care upon the holder of the easement, and would further rule that once such a duty exists, it may not be abrogated by covenant.

I. Easement Interests in General

To ascertain the appropriate law governing in this case, it is necessary to explore briefly the New York law of easements.

Although easements may be created in a variety of ways, fundamentally they are defined by the rights and obligations they create. An easement is more than a personal privilege to use another's land, it is an actual interest in that land. Trustees of Southampton v. Jessup, 162 N.Y. 122, 126, 56 As a corollary to the rule that an easement imposes no affirmative duty on the servient owner, it developed that the duty to maintain and repair structures or facilities existing under an easement rests on the dominant, not the servient, owner. See Herman v. Roberts, 119 N.Y. 37, 42, 23 N.E. 442 (1890); McMillan v. Cronin, 75 N.Y. 474, 477 (1878). This rule is invoked in disputes between servient and dominant owners to decide which party is required to make repairs. See, e.g., Muxworthy v. Mendick, 66 A.D.2d 1017, 1019, 411 N.Y.S.2d 737 (4th Dep't 1978) (dispute over responsibility for clearing snow); Schenectady Ry. v. Greene, 227 A.D. 11, 15, 236 N.Y.S. 477 (3d Dep't 1929) (dispute over obligation to repair a bridge), aff'd, 257 N.Y. 610, 178 N.E. 816 (1931). A recognized exception to the general rule that the owner of the servient tenement owes no affirmative duty is that the servient owner may be required to perform maintenance functions if a covenant so provides or in other "special circumstances." Greenfarb, 256 N.Y. at 135, 175 N.E. 649; Elzer v. Nassau County, 111 A.D.2d 212, 213, 489 N.Y.S.2d 246 (2d Dep't 1985).

                N.E. 538 (1900).   In the case of an affirmative easement, the owner of the dominant tenement--the easement holder--acquires or is granted a right to use another person's land in a particular, though limited, way.   The grant carries with it those rights necessary to effectuate the easement's exercise and enjoyment.   See Bliss v. Greeley, 45 N.Y. 671, 674 (1871).   The grantor or servient tenement owner retains a possessory interest in the land, and can use it for any purpose
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