If a young adult engages in an athletic competition, and is injured while playing, there may be a defense to third-party liability based upon the doctrine of “assumption of risk”. So does that defense protect a property owner where a person drinks to the point of intoxication; trespasses on a construction site; and is injured in a fall?

In July 2015, Michael Desroches and his friend, Daniel O’Grady, visited Daniel O’Grady’s brother, Ryan O’Grady, who resided in the Timber Creek subdivision in the Town of Ballston Spa, Saratoga County. The group socialized throughout the evening and consumed alcoholic beverages. After midnight, they went for a walk in the neighborhood and eventually decided to enter one of the houses still under construction. When Daniel O’Grady entered the house, followed by Desroches and Ryan O’Grady, he saw an opening in the floor that was located between 10 to 15 feet from the entrance and stepped to the side. But Desroches proceeded forward and fell through the opening approximately 8 or 10 feet into an unfinished basement, sustaining head injuries that required hospitalization.

Desroches sued the owner/developer of the subdivision and the general contractor — claiming they were negligent in failing to maintain the premises in a safe condition in that they did not secure the house, post “no trespassing” signs to prevent entry or cover the floor opening. Defendants moved for summary judgment dismissing the complaint on the basis that Desroches presence on the property was not foreseeable due to his extreme intoxication and trespass. Desroches cross-moved for summary judgment on the issue of liability, arguing that the accident was foreseeable because they had prior knowledge of trespassers on other homes in the subdivision. Supreme Court granted defendants’ motion and denied Desroches’ cross motion, finding that  Desroches’ actions in entering the under construction unfinished structure at 3:00 a.m. while he was intoxicated was not reasonably foreseeable as a matter of law, and thus defendants owed no duty of care to him. Desroches appealed. Supreme Court granted defendants motion and dismissed Desroches’ complaint. Deroches appealed.

A landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. That a person enters without permission may well demonstrate that the his presence was not foreseeable at the time and place of the injury. However, the likelihood of one entering without permission depends on the facts of the case, including the location of the property in relation to populated areas, its accessibility and whether there have been any prior incidents of trespassing in the area where the injury occurred. Notably, what accidents are reasonably foreseeable, and what preventive measure should reasonably have been be taken, are ordinarily questions of fact. Questions of foreseeability may be determined as a matter of law only when a single inference can be drawn from the undisputed facts.

Deroches, Daniel O’Grady and Ryan O’Grady confirmed that they had been drinking and, according to Daniel O’Grady, were all intoxicated. Notably, Desroches did not have any recollection of the actual incident, and it was unclear whether his memory lapse was due to his head injury or the fact he was intoxicated that evening. Ryan O’Grady testified that it was probably his or Daniel O’Grady’s idea to go into the house. Ryan O’Grady explained that he would often walk through the new construction sites, as it was a “common thing to do,” and he would “[a]lways see people walking around, going through the houses.” He stated that they entered the property sometime at or around 3:00 a.m. According to Ryan O’Grady, the property was framed, but without a back wall and with the door “wide open.” He recalled that Daniel O’Grady was the first to enter the house, followed by Desroches. Once inside, Daniel O’Grady immediately walked around the floor opening, which was located where the basement stairs would be placed. As he entered the house, Ryan O’Grady observed the opening and then saw Desroches fall through. Ryan O’Grady further testified that the builder’s agents were sometimes present when people were going through houses during the evenings. He had no knowledge of the builders escorting people off the property. When shown photos of the house depicting “sold” and “private property, no trespassing” signs, Ryan O’Grady stated that the photos did indeed depict the property, but that the signs were not there at the time of the incident and were installed days later.

Although Daniel O’Grady acknowledged that he, Ryan O’Grady and Desroches were intoxicated, he did not observe Desroches having any difficulty walking. Daniel O’Grady confirmed that he was the first to walk through the front door, explaining it was unlocked with no doorknob or other locking mechanism. As he walked in, assisted with the light from his phone, Daniel O’Grady noticed the floor opening and walked to the left. He claimed the opening was not covered by anything and was located approximately 10 to 15 feet from the entrance. The next thing he knew, Ryan O’Grady called him to assist with helping Desroches, who had fallen through the hole.

Geoffrey Brooks — the owner of Brooks Heritage, LLC, which co-owns Heritage Custom Builders, LLC — testified that the property where the accident occurred was part of a development that was under construction, known as Timber Creek. Brooks claimed that he learned about the incident from state troopers. He explained that the property was “forcibly entered” and that someone broke the doorjamb. He could not, however, recall the last time he was present at the property prior to the incident. Brooks also explained that his company had a policy prohibiting purchasers from entering a home under construction without a company representative and that site managers posted no trespassing signs on homes under construction. He testified that he was aware of individuals entering into homes under construction because he had contacted the Sheriff’s Department and State Police “many times a month” to report such activity. He stated that there were problems “keeping the security of the site” and therefore he posted no trespassing signs and filed police reports. He did not personally know when a no trespassing sign was placed on the window of the property.

In support of their motion for summary judgment, defendants presented the affirmation of a physician who opined that Desroches was “extremely intoxicated” at the time he fell. The physician stated that the medical records indicated that Desroches had a blood alcohol level of .31%, which was nearly four times the legal blood alcohol content limit for driving. According to the physician, such a level of intoxication results in “difficulty maintaining balance, impaired vision and time [and] space orientation, poor judgment, and severe difficulty with motor functions.”

Viewing this evidence in the light most favorable to Desroches, the appeals court found, contrary to Supreme Court’s determination, that a triable issue of fact existed as to whether Desroches’ presence on the property was foreseeable. The testimony of both Ryan O’Grady and Brooks confirmed that it was common knowledge that people would routinely walk through houses still under construction. On that record, reasonable persons could disagree as to whether it was foreseeable for Desroches to be on the property and whether defendants reasonably secured the property, thereby precluding summary judgment to defendants.

The appeals court disagreed with defendants contention that Deroches’ intoxication and late night trespass served as a superseding cause of the incident. An intervening act will be deemed a superseding cause and will serve to relieve a defendant of liability when the act is of such an extraordinary nature or so attenuates the defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant. Here, Desroches had never been to the property before, and defendants did not establish that he either knew or should have known that such conduct was dangerous. And there were triable issues of fact as to whether there was a no trespassing sign on the property, whether the property was properly secured to prevent entry and even whether the floor opening was covered. Although defendants’ expert opined that Desroches was extremely intoxicated when he entered the property, Daniel O’Grady did not observe him having any difficulty walking. Desroches’ alcohol impairment may well have played a significant role in the accident for comparative fault purposes, but that fact did not exonerate defendants from liability as a matter of law. The appeals court concluded that the circumstances presented were not so extraordinary or unforeseeable as to constitute, as a matter of law, a superseding event that would sever the causal connection between defendants’ alleged negligence and Desroches’ injuries.

The appeals court reversed and reinstated Desroches’ ccomplaint.