In Jackson v Conrad, the plaintiff was injured when an elevated deck separated from a house and fell.  The plaintiff sued the property owners and the contractor that had installed the deck.  The Second Department affirmed summary judgment granted to the owners and the denial of the contractor’s motion for summary judgment.

In order for the owners to be liable, they would have had to have either created the condition or had actual or constructive notice of it.  However, the owners established, prima facie, that they neither created the condition nor had notice of any defect.  The Court explained that, when a defect is latent and not discoverable upon a reasonable inspection, constructive notice cannot be imputed.  Moreover, the Court found that the owners could not be held liable for an independent contractor’s negligent acts and that the falling deck did not fall under the res ipsa loquitor doctrine.  Thus, the owner could not be found liable as a matter of law.

On the other hand, if the contractor were found to have negligently constructed the deck, it could be liable for launching the instrument of harm.  As such, there was a genuine issue of fact as to the contractor’s potential negligence.

Thanks to Georgia Coats for her contribution.

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