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 decisiоn 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 allеges, 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 eenter/offiee 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 declaratiоn were to be construed as covenants running with the land.
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 plaintiffs 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.,
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,
I. Easement Interests in General
To ascertаin 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,
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 easеment rests on the dominant, not the servient, owner.
See Herman v. Roberts,
II. Duty of Easement Owners to Third Parties
With these general rules regarding the creation of rights and duties under easements in mind, we turn to the specific duties owed by easement grantees towards third parties сoming onto the easement. A prima facie case of negligence — whether it involves a condition on land or some other type of hazard — requires a showing that the defendant owed a duty of reasonable care to the plaintiff, that such duty was breached, and that the breach was the proximate cause of plaintiffs injury. In the present ease we are concerned with the first of these elements.
A. Connection Between Ownership of Easement and Duty
In cases involving liability for injuries arising from conditions on property, the existence of a duty generally depends upon “occupancy, ownership, control or a special use of [the] premises” by the defendant.
Balsam v. Delma Eng’g Corp.,
New York courts have indicated on several occasions that the holder of an ease
As the foregoing discussion suggests, the circumstances surrounding the grant of an easement and its use are sufficiently diverse so as to preclude a universal rule either of liability or immunity for easement owners in actions for wrongs brought by third parties.
B. Duty of Servient and Dominant Easement Owners to Third Parties
Whеn considering therefore whether there is a duty owed to third parties by the owner of a dominant or servient tenement, the circumstances which define the easement’s existence are critical. Four examples will illustrate why there is no uniform rule regarding easement owners’ liability to third parties. The four examples are where: (1) a condition exists on a servient owner’s property, but it is not situated on a part of the property subject to the easement; (2) a condition exists in the part of the property subject to the easement, but the dominant owner has not exercised the rights granted to it, e.g., has not yet built a roadway; (3) an injury occurs in a place where the dominant owner is exerсising its rights and the servient owner is also able, for its own purposes, to use the granted property; (4) dominant owner’s rights in the property subject to the easement are so exclusive that servient owner retains no rights whatever over the subject easement, and an injury occurs where the dominant owner has such exclusive control. We think that under New York law in examples (1) and (2) the dominant owner owes no duty of reasonable care to third parties, in (3) both the dominant and the servient owner owe such a duty, and in (4) only the dominant owner of the easement owes a duty to third parties.
Discussion now turns to an analysis of the decisional law that we believe supports those results. The first example assumes a condition existing within the servient tenement unrelated to the portion of the grantor’s property subject to the easement. For instance, an easement allows a right-of-way over the southwest corner of the servient lot, but a dangerous condition in the northeast comer of the lot causes injury. The dominant owner’s interest is clearly unrelated to the hazardous condition and no duty of due care would be owed by it to third persons injured in the northeast portion of grantor’s property.
See Monaghan v. SZS 33 Assocs., L/P.,
The second situation involves a dominant easement owner who has the right to use the adjоining land of another for a certain purpose, but has declined to exercise that right and has chosen not to interfere with the servient owner’s enjoyment of its property. Under such circumstances, the dominant owner owes no duty to a third party injured on the part of the property subject to the
The third scenario involves a dominant owner who exercises her rights under an affirmative easement and a servient owner who — without interfering with the legitimate activities of the easement holder — is able to use the property for her own purposes. An example would be where an easement gives the dominant owner a non-exclusive right-of-way over a certain part of the servient property, both the dominant and servient owners use that part of the property as a road, and a third party is injured by a dangerous condition in the road. In such a ease, both owners appear to owe a duty: the servient owner owes the ordinary duty of a landowner, and the dominant owner owes the duty stemming from the obligation to maintain and repair the easement.
Cesario
is siich a case. There plaintiff slipped on ice in an alleyway subject to an easement. The dominant owner used the-alleyway as a driveway and the servient owner used it to discharge rainwater from her roof.
Cesario,
Thus, joint liability can attach where the property is used by both the dominant and servient owners.
See Mills v. City of New York,
In the fourth example, the injurious condition is so closely tied to the exercise of the easement holder’s rights that the servient owner could not act to prevent the injury. In this example, the dominant owner would clearly owe a duty of reasonable care to third parties to alleviate the hazard, while the servient owner — though having a possessory interest in the estate — might owe no duty. The facts of
Green v. Duke Power Co.,
C. Control as Key Factor Subjecting Easement Owner to Third Party Liability
Of course not all personal-injury cases involving easements fit neatly within
This rule also coincides with decisions in other jurisdictions. Although such decisions are somewhat uncommon, those that have addressed the tort liability of an easement holder have adopted the “control” test posited a moment ago.
See McDermott v. Metropolitan Sanitary Dist.,
III. Resolution of Instant Case
In the present case defendant sufficiently controlled the relevant portion of the subdivision to warrant the imposition of a duty of care toward third parties. We note initially that the accident occurred in that part of the municipality’s property that was subject to an easement. Section 3.3 of the declaration stated thаt the common areas, including the parking lots described in the subdivision plat, were subject to easements for the general use of all the owners for their intended purposes. Because the accident occurred in a common area, the defendant cannot avoid liability on the basis that the injury was — as in the first hypothetical situation described above — unrelated to the property subject to the easement.
Hence, as a holder of an easement over lot 2, Go Jokir was entitled to remedy any deficiency in the municipality’s snow-clearing activities. But, аs explained above, the authority to maintain property so as to prevent accidents does not automatically give rise to a duty on the part of a dominant easement owner. If Go Jokir had declined to make use of the rights secured under the recorded declaration — as in the second hypothetical and as did the defendant in
Roberts,
Because defendant exercised its rights аnd had the authority to ensure that the common areas were well-maintained, this case is similar to
Cesarlo,
which imposed on a dominant owner the duty owed by possessors of land toward their licensees. In that ease, the defendant easement holder made use of a right-of-way, and the defendant servient owner could use the way for any purposes not inconsistent with the easement. As a result, both defendants owed the duty of a landowner, which was then dependent upon the status of the plaintiff vis-á-vis the defendant.
Cesario,
Relying on
Turrisi v. Ponderosa, Inc..
Were a New York court deciding the instant case we think it would take into account the circumstances surrounding the ownership and exercise of the easement, rather than applying a technical rule derived from cases involving the respective duties of property owners as opposed to duties to third parties.
See Balsam,
IV. Delegation of Easement Holder’s Duty
Defendant further insists any common-law duty it owed was altered by the
In the first place, defendant cites no authority suggesting that a servient owner may by covenant relieve the dominant owner of the duty to maintain that it would otherwise owe to third parties. Go Jokir relies on
Greenfarb,
a case in which a real estate purchaser sought the return of a down payment. The contract of sale provided that the property was unencumbered but that the transfer was subject to “restrictions and easements,” and it turned out that defendant’s predecessor had covenanted to maintain a certain road across the parcel.
Greenfarb,
Thus, Greenfarb’s ruling was on the contract dispute, addressing only the rights and duties between buyers and sellers, on the one hand, and dominant and servient owners, on the other. It did not discuss or purport to rule on the impact of a covenant to repair with respect to an easement owner’s liability to a third party injured on that part of the parcel subject to the easement. Nor was there any intimation that such a covenant relieved an easement holder of any obligation whatever, let alone the obligation to exercise due care toward third parties using property subject to an easement.
Monaghan,
also cited by defendant, is similarly unhelpful to it. In that case, a commuter sought to recover against a building owner for injuries from a criminal assault. The defendant held an easement over a vestibule leading to a stairway. The district court ruled first the defendant owed no duty because the assault occurred in the stairway, which was not subject to the easement. Second, the court held that whatever duty was owed was, in any event, not breached, because the incident was not reasonably foreseeable.
Monaghan,
Nor does the defendant advance any sufficient legal reason for absolving an easement holder of any tort duty where, as here, the easement holder makes use of its easement rights and has a sufficient degree of control to help prevent injuries on the servient property. Once it is determined that the defendant, as the owner of an easement, owes the duty of a landowner, the next question to be answered is whether the duty was breached. Therefore, the scope of the defendant’s duty now depends entirely on whether the defendant maintains the property “in a reasonably safe condition in view of all the сircumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”
Basso,
Although there appears to be no New York decision squarely holding that the tort duty of an easement holder is not delegable, decisional law supports that proposition. A dominant owner’s duty, because it is predicated on ownership or control, is the same as that owed by a landowner. Certain of these duties are held to be non-delegable — that is, liability is imposed even though the injury results from the negligence of an independent contractor.
Thomassen v. J & K Diner, Inc.,
Such a duty arises, for example, “whenever the general public is invited into stores, office buildings and other places of public assembly.”
Id.
The sаme principle applies to the present case, which involves an easement holder’s duty of care toward persons using a common area in a shopping and office complex. Because New York courts have ruled that premises liability extends to “possessors,”
see Nallan v. Helmsley-Spear, Inc.,
Burgundy Basin Inn, Ltd. v. Watkins Glen Grand Prix Corp.,
In addition, the policies underlying the non-delegation doctrine apply equally to the instant ease. The doctrine is based on the notion that the defendant derives a benefit from the work performed, that it is in a position to insure against personal injuries and to bear the expense as a cost of doing business, and that it is in a position to remedy dangerous conditions.
See Thomassen,
Moreover, the dominant owner may be entitled to indemnity from the servient owner,
cf. Burgundy Basin Inn,
Consequently, we hold that the defendant’s duty to exercise reasonable care toward third parties making use of the parking lot subject to the easement, once established, is not abrogated by a covenant on the part of the servient owner to clear ice and snow from the lot. The general rule that a servient owner may assume duties of maintenance, while undoubtedly relevant as between dominant and servient owners, does not apply
CONCLUSION
For the reasons stated, the judgment of the district court granting summary judgment to the defendant is reversed and the ease is remanded for a trial on the merits, in a manner not inconsistent with this opinion.