No Negligence where Hurricane Irene Flooded Plaintiff's Apartment

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision which arose from Hurricane Irene granting summary judgment.

Although it seems hard to believe, Hurricane Irene occurred almost three years ago on August 28, 2011. Clearly with a storm of such a magnitude, there were claims which later gave way to suits. One of the suits that arose from Hurricane Irene was recently the subject of a summary judgment motion that we defended and won.

In Leary v. Dutchess Apartment Associates, LLC, Hurricane Irene penetrated the defendants' apartment building's lower level and flooded the plaintiffs= apartment along with several other units in an unprecedented fashion. As a result, the plaintiffs= carpets were wet, however the bathroom remained dry.   The building management planned to remove the wet carpets the next day. The day after the flooding, the plaintiff walked into his dry bathroom with wet slippers and fell. The slippers had become wet when he walked over the wet carpet and into the bathroom. Plaintiff sued, alleging that the defendants were negligent in not completely removing the wet carpet on the day of the flooding. In addition, the plaintiffs argued that Hurricane Irene should not be considered an "Act of God", and that defendants should have taken preventative measures prior to the flooding.

We moved for summary judgment. We argued there was no triable issue of fact since the plaintiffs had failed to establish that the defendants breached a duty of care or that the defendants had actual or constructive notice of a dangerous or defective condition. We argued that it was unreasonable to expect the defendants to remove all of the wet carpets on the same day as the flooding. In addition, we noted that plaintiff did not slip on the wet carpet, rather he knowingly walked on the carpet with slippers and fell in his dry bathroom where one would expect a wet floor at any rate. In addition, we argued that the defendants could not have taken unknown measures to prevent the flooding since the plaintiffs had made no showing that the defendants had reason to know that the apartment would flood in an extreme weather event, and it had never flooded at anytime prior to the date of the incident. In fact, plaintiff testified that at no time during the three years that they lived at the apartment complex, did the apartment ever take on water other than from Hurricane Irene.

The Court granted our motion for summary judgment. The Court noted that the defendants had established that they did not create the condition nor did they have actual or constructive notice of the alleged condition for a sufficient period of time to have discovered and remedied the condition. Thus, the Court granted our motion for summary judgment and dismissed the complaint.

The Court's decision did not rest on an "Act of God" due to Hurricane Irene, but rather based its decision on the first requirement of premises liability: notice of a dangerous condition. It is always important to analyze every liability situation to determine whether there is a valid lack of notice defense which could serve as a basis for a summary judgment motion.

Should you have any questions, please do not hesitate to call.

Thomas M. Bona