Who knew? Apparently in the Bronx lighting mattresses on fire is a “phenomenon,” and foreseeable. (At least according to a recent First Department decision . . .)

In Feliz v. DAKA Holdings, LLC, a tenant left a mattress in the hallway of a building, and an unidentified person lit it on fire. The plaintiff sued the building owner for injuries sustained in the fire. The owner moved for summary judgment arguing that it had no notice of the mattress, and that it was unforeseeable that someone would light it on fire. In opposition, the plaintiff submitted testimony of a fire safety expert who stated it was “common knowledge that mattresses left in the public areas of multiple dwellings are often set on fire” and that “mattresses pose an acute hazard due to the phenomenon of people setting [them] on fire.” The court denied the owner’s motion based on the expert’s testimony, and based on the fact that the superintendent was supposed to remove any mattresses found in common areas of the building because they could catch fire. The super ordinarily swept the common areas and made arrangements for removal of larger items left behind on a daily basis. Accordingly, the court held that there were triable issues of fact as to whether the defendant had actual or constructive notice of the hazardous condition posed by the abandoned mattress.

When defending a personal injury claim, it can be difficult to prove that a potential harm was unforeseeable. Even though many people may not consider it “foreseeable” for an abandoned mattress to be set on fire inside a building, it appears that a plaintiff need only produce an expert to the contrary to defeat a summary judgment motion.

Thanks to Jeremy Seeman for his contribution to this post. For any questions about this post contact ">.