Q: “I rent the ground floor of a duplex. It was just remodeled before I moved in with a new kitchen, bathrooms and windows. I live here with my girlfriend and her son. Last Saturday, her son was heading out to the backyard and he walked into the sliding glass door. It shattered into large pieces and cut his arm really bad. He had to have a nerve graft and we don’t know if his hand will be the same. The bills are piling up. Is the landlord responsible?”
A: Jim, unfortunately I have handled dozens of glass injuries in homes, fitness centers, offices, stores and hotels. Your question falls under the law of premises liability. Premises liability is a form of negligence in which one who owns, maintains and/or controls the property has a duty to exercise care in the management of the premises to avoid exposing people to an unreasonable risk of harm. To establish a claim for premises liability, a plaintiff must establish that 1) the defendant owned, occupied and/or controlled the property; 2) the defendant was negligent in the use or maintenance of the property; 3) the plaintiff was harmed; and 4) the defendant’s negligence was a substantial factor in causing the plaintiff’s injury.
One who leases property to others is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. The landlord also has a duty to use reasonable care to discover any unsafe conditions and repair, replace or give warning of anything that could reasonably harm those whom the landlord knows, or should expect, to be upon the property. A defendant need not own, possess and control property in order to be held liable — control alone is sufficient. So, in cases of rental apartments, if there is a property management company involved, it may also be liable if it controls the rental.
Factors considered in determining whether a defendant used reasonable care to keep the property reasonably safe include, but are not limited to the location of the property, the likelihood of harm, the probable seriousness of such harm, whether the defendant knew or should have known of the condition that created the risk of harm, the difficulty of protecting against the risk of such harm and the extent of the defendant’s control over the condition that created the risk of harm.
In a glass injury case, it is important to know what kind of glass is in question. There are two major types of glass: annealed glass and tempered glass. Annealed glass is glass that is allowed to cool slowly, while tempered glass is treated with carefully controlled heat and/or chemical treatments. Tempered glass is often called safety glass and can be identified by the etched marking that is required to appear on one of the corners of the glass.
Whether safety glass is required often depends on when the building was originally constructed or when it was substantially modified or had a change in use. All building codes from 1988 through the present include a section requiring the use of safety glass in hazardous locations.
The original construction, if it was done before 1988, may not have required safety glass. However, if, as you stated, there was a major upgrade, including a new kitchen, new bathrooms and new windows, then that would usually trigger an upgrade of the sliding glass door as well so as to meet current building code requirements. Therefore, the owner of the rental property appears to bear some responsibility. If the contractor who did the renovations failed to use the glass that had been specified, then the contractor may also bear some responsibility for the damages.
I would suggest that you call the Building Department and have them come in and examine the other glass surfaces to see if they are in compliance. Additionally, make sure to have your landlord contact his or her insurance company and get you a contact person and claim number. Most property insurance policies contain a provision for medical payments coverage, which is a no-fault coverage that pays $5,000 or more immediately to assist with medical bills.
The insurance company will contend that your girlfriend’s son was negligent. Since this is a serious injury, you should retain the services of a trial lawyer to assist you in resolving the case or taking it to trial if the insurance company won’t be fair.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.