NY COURT RULING ON BARBECUE SAFETY

First, before anyone goes declaring their common-area patios and back yards off-limits to barbecues of any kind, it helps to know the particulars of this rental-building case, which has yet to be tried. It affects co-ops boards in that by having a proprietary lease, a cooperative corporation is considered a landlord in the eyes of the law. And while the details don't directly translate to condo associations, the general outlines do.

According to the December 29 decision in Broderick v. RY Management Co., Inc., tenant Linda Lanier and her husband Hosea Swinson hosted a barbecue on July 4, 2003, for about 150 people. Elron Williams, the building's superintendent, gave Swinson permission to hold the party in a partially enclosed gated alcove on the building's ground floor. On the morning of the party, Williams unlocked the gate to the alcove and Swinson set up the cooking equipment, which included a deep-fat turkey fryer attached to a 20-pound propane tank.

Williams provided Elder Sanders, a guest at the party who tended the fryer, with a garden hose. Because the end of the hose apparently did not have a nozzle which would allow the party organizers to regulate the water flow, Williams left the water running. The hose was placed near the cooking area and the water flowed into a nearby storm drain, continuously running during the entire barbecue. After frying a number of turkeys, Sanders left the area to get some cigarettes. Sometime thereafter, a guest emptied the hot oil into the drain while another attendee poured water from the hose onto the drain.

Explosion, and a Tragedy

The oil's contact with water caused a reaction resulting in fire and a steam cloud. Guest Edith Lee was burned on the back of her legs, and her 14-month-old daughter, Keira Boderick Lee, suffered burns on her face, hands, legs and arms so severe she was hospitalized for over two months and underwent several skin graft surgeries; she has numerous permanent scars, hearing loss, speech impairment and developmental deficits.

To quote the court's decision allowing the case to go to trial, "A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk. In order to recover damages for an alleged breach of this duty, the plaintiff must first demonstrate that the defendant created or had actual or constructive notice of the hazardous condition which precipitated the injury. The plaintiff must also show that the defendant's negligence was a proximate cause of the injuries." As well, the court noted, "where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence."

Whether or not the building's owners, Grote Street Associates and Twin Parks Northeast Site II Houses, or its managing agent, RY Management, bear any responsibility is up to a jury to decide. What's not in question for a co-op board or a condo association is whether the phrase "deep-fat fryer with a 20-pound propane tank" should ring alarm bells and set off red flags.

Barbecues are held safely in New York City, as elsewhere, all the time. But a deep-fat turkey fryer should immediately raise alarms. The National Fire Protection Association and the American Burn Association discourage their consumer use. Additionally, using it with a 20-pound propane tank in a multiple-unit residential dwelling is illegal under the New York City Fire Code. Finally, this particular fryer violated another section because it had not been approved or listed by a nationally recognized testing laboratory.

All this doesn't mean you should ban barbecues altogether. The New York City Fire Department website even has a page devoted to holding safe barbecues.

It does mean that co-op and condo boards should ensure that anyone holding a barbecue must agree to abide by the FDNY Fire Code. Which means you as a board have to know the pertinent rule.

Next page: The pertinent rule >>