The Special Use Doctrine in New York Common Law: A Duty to Maintain
New York common law has long recognized the special use doctrine, which imposes a duty on a party making special use of public property to maintain that property in a reasonably safe condition. However, certain New York Appellate Division decisions have suggested that liability under the doctrine attaches only when the special use creates the dangerous condition. This interpretation contradicts the clear precedent set by the New York Court of Appeals, which has consistently held that special use itself triggers a duty to maintain. Accordingly, decisions requiring the special use to create the dangerous condition should be overruled.
Court of Appeals Precedent on the Duty to Maintain
The Court of Appeals has repeatedly confirmed that a party who derives a special benefit from public property, unrelated to public use, assumes the duty to maintain that property safely. In Poirier v. City of Schenectady, 85 N.Y.2d 310, 315 (1995), the Court held that special use imposes a duty to maintain. This principle was reaffirmed in Kaufman v. Silver, 90 N.Y.2d 204, 207 (1997), where the Court explained that a party enjoying a special benefit from public property is required to maintain it in a reasonably safe condition.
The Appellate Divisions have also recognized the duty to maintain under the special use doctrine. The Second Department stated in Bliss v. City of New York, 162 A.D.3d 730, 731 (2d Dept. 2018), and Guzov v. Manor Lodge Holding Corp., 13 A.D.3d 482 (2d Dept. 2004), that those who put property to a special use or derive a benefit from it must maintain it in a safe condition. Similarly, the First Department has held that where public property is used for a special benefit, the party making that use is obligated to maintain it to avoid endangering the public. Santorelli v. City of New York, 77 A.D.2d 825 (1st Dept. 1980); Robles v. Time Warner Cable Inc., 167 A.D.3d 411 (1st Dept. 2018).
Rejection of the Requirement That Special Use Creates the Dangerous Condition
Despite clear Court of Appeals precedent, some Appellate Division decisions have stated that liability under the special use doctrine requires that the special use create the dangerous condition. See Yee v. Chang Xin Food Mkt., Inc., 302 A.D.2d 518, 519 (2d Dept. 2003). However, this requirement is unsupported by Court of Appeals precedent and should be rejected.
In each case where the Court of Appeals has addressed the doctrine, it has never imposed a requirement that the special use create the defect before liability attaches. The special use doctrine originated in the 1800s and has been reaffirmed as imposing a duty to maintain in modern cases such as Kaufman and Poirier. Nowhere in these decisions did the Court suggest that liability under the doctrine depends on the special use creating the dangerous condition.
Moreover, requiring the special use to create the defect would make the doctrine redundant within premises liability law. Under standard premises liability principles, a party is already liable when it affirmatively creates a dangerous condition. If special use only imposed liability in such instances, it would be indistinguishable from the general rule imposing liability on those who create hazardous conditions. The special use doctrine serves a distinct purpose: it establishes a duty to maintain public property put to special use, separate from liability for creating a defect.
Implications for Prior Written Notice Laws
Requiring special use to create a defect would also contradict Court of Appeals precedent regarding exceptions to prior written notice laws. The Court of Appeals has consistently held that a municipality lacking prior written notice of a defect may still be liable when (1) the municipality creates the defect through affirmative negligence or (2) a special use confers a benefit upon the municipality. Groninger v. Village of Mamaroneck, 17 N.Y.3d 125 (2011).
If the special use doctrine only imposed liability when the special use created the defect, it would be redundant to the affirmative negligence exception. The Court of Appeals, however, has treated these as separate exceptions, further demonstrating that special use triggers a duty to maintain rather than being contingent upon the creation of a defect.
Conclusion
The Court of Appeals has unambiguously held that special use imposes a duty to maintain public property put to such use. Appellate Division decisions requiring that the special use create the dangerous condition before liability attaches misinterpret this doctrine and should be overruled. The special use doctrine exists to impose a duty to maintain, not merely to duplicate existing liability for creating hazardous conditions. Recognizing this distinction ensures proper application of premises liability law and maintains consistency with Court of Appeals precedent.