When Can an Owner or Tenant be Held Liable for the Acts of an Arsonist?

Negligence “requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger.” [1]    Whereas one court held that an absentee owner might be liable for an arson fire, a more recent court held that a tenant may not.

In the case I had, defendant owned a vacant apartment building near downtown Albany.  The fire was believed to have been started at the porch of this vacant apartment by an unknown arsonist.  At her deposition, defendant testified it was “all over the news” that there was an arsonist setting fires in vacant buildings in the subject neighborhood.  The appellate court in Albany denied summary judgment and found that there was a question of fact for the jury to determine.  “We believe a jury could find that the proximate cause of plaintiff’s damages was defendant’s leaving her building vacant and apparently in disrepair and not fully secured, thereby making it easily accessible to vandals.”[2] 

Recently, another appellate court granted defendant/tenant’s motion for summary judgment.[3]     In this case, a warehouse was damaged by a fire believed to have been started by an arsonist.  The owner had complained prior to the fire that employees for a company leasing part of the warehouse were creating a “fire hazard” by consistently leaving trash in the area where the arsonist later struck.  The court concluded that, even if the tenant was negligent in leaving trash around, “any negligence was not a proximate cause of the damages alleged by the plaintiffs since.. the arsonist’s conduct was not foreseeable.” 

Bottom Line:  Normally, an owner or renter cannot be held liable for the criminal, intervening act of an arsonist.  In evaluating these types of subrogation claims, the courts look to see if it was “reasonably foreseeable” that an arsonist could start a fire due to some type of fault on the part of the owner.  In the first case discussed above, the court concluded the absentee owner had specific notice that an arsonist was in the area striking vacant, unsecured buildings and therefore, it was a realistic possibility that a failure to board up the apartment building could lead to a fire.  The court in the second case, in contrast, did not impose a duty on the tenant, finding it was not foreseeable that a general “sloppiness” in leaving trash around would necessarily “cause” to an arsonist to set the trash on fire.  Hope you have a safe and happy holiday!

[1]  NY Pattern Jury Instruction 2:12
[2]  New York Central Mutual a/s/o Stevens v. City of Albany, et al, 247 AD2d 815 (3rd Dept 1998)
[3]  Travelers Indem a/s/o Contrail v. More Buying Power, 67 AD3d 1000 (2nd Dept November 24, 2009)

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