In Lizarzaburo v Schmergel, Alma Rios was employed as Patricia Schmergel‘s housekeeper, and while Ms. Schmergel was away on vacation, Ms. Rios brought two friends with her to work. They also brought alcohol to the property, and while Ms. Rios worked, the friends drank on a patio next to the swimming pool in the backyard. Without Ms. Rios’ permission, one of the friends jumped into the pool. Afterward, Ms. Rios’ gave him a towel and went into the house to dry his clothes. The other friend went inside the house to use the bathroom. Upon returning to the backyard, Ms. Rios tragically found her “severely intoxicated” (.24 BAC) friend dead at the bottom of the pool.

The decedent’s estate filed a lawsuit in Nassau County Supreme Court for wrongful death against both Alma Rios and Patricia Schmergel. After the Supreme Court dismissed the lawsuit, the decedent’s estate appealed.

On appeal, the Second Department affirmed the Supreme Court’s finding and held that Ms. Rios had no duty to protect the decedent from the result of his own intoxication, and the property owner, Ms. Schmergel, did not breach her duty to act as a reasonable landowner to prevent harm to persons on the property. In reaching this decision, the Court affirmed the principle that a property owner cannot be liable for a housekeeper’s actions unrelated to her work duties.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.