Residents of a student boarding house had no obligation to supervise an 18-year-old college freshman who got drunk at their party and fell out a second floor window, an appellate court has held.

The Appellate Division, Fourth Department, concluded in a 3-1 opinion that since the student was an adult, he cannot sustain a negligent supervision claim, notwithstanding the fact that he was below the legal drinking age and his hosts allegedly condoned underage drinking.

Parslow v. Leake, 13-00298, is a premises liability/negligent supervision case that stemmed from a tragic accident in September 2008 that rendered a young man a paraplegic.

Bryan Parslow, then a student at Brockport, attended a party at an off-campus boarding house where about 20 members of a fraternity lived. Parslow was noticeably intoxicated when he fell out of a second-story bathroom window. The large window was open but covered with a blind, and its sill was less than 14 inches off the ground, records showed.

Parslow resolved a case against the landlord and pursued an action against the residents on premises liability and negligent supervision theories. He claimed that the occupants had a duty to protect him from a dangerous condition—the window—and also that the residents failed to provide adequate supervision.

Supreme Court Justice Thomas Van Strydonck of Monroe County generally threw out the premises liability claims and sustained the negligent supervision causes of action. In its decision Friday, the Fourth Department generally did the opposite—throwing out the negligent supervision claims while allowing the premises liability actions to go forward.

Presiding Justice Henry Scudder (See Profile), writing for the majority, said there was no doubt that the residents both occupied and controlled the property and therefore had an obligation to ensure the house was free of open and obvious dangers. He said that the window from which Parslow fell was clearly dangerous.

“In our view, despite the property’s apparent compliance with the local statutes and regulations, a jury could nevertheless determine that the absence of a screen or fall protection device in the window constituted a dangerous condition,” Scudder wrote in an opinion joined by justices Erin Peradotto (See Profile) and Edward Carni (See Profile). “Inasmuch as the resident defendants failed to establish as a matter of law that they did not breach their duty to maintain the premises in a reasonably safe condition, the burden never shifted to plaintiffs to raise a triable issue of fact.”

But the majority flatly rejected the negligent supervision claim.

Scudder explained that hosts of parties where alcohol is served can be liable for injuries under two distinct negligence theories: their duty as an owner or occupier “to control the conduct of third persons for the protection of others;” and the duty of adults to supervise minor guests who become intoxicated in their home. Neither applied in this case, he said.

The presiding justice said that under D’Amico v. Christie, 71 NY2d 76 (1987), those in control of property have a duty to monitor “the conduct of third persons for the protection of others on the premises,” under the reasoning that an intoxicated guest becomes a dangerous condition. But he also said the courts have consistently declined to hold a property owner responsible for injuries suffered by a guest due to his or her own intoxication.

Additionally, Scudder and the majority said the negligent supervision policy imposes liability only on adults who fail to supervise intoxicated minors. The majority made clear that its 2010 holding in Struebel v. Fladd, 75 AD 3d 1164, on which Parslow relied, does not stand for “the proposition that adult hosts of a party may be liable to an adult guest who is injured as a result of that guest’s own voluntary intoxication.”

Also, the court distinguished this case from O’Neill v. Ithaca College, 56 AD3d 830 (2008), an Appellate Division, Third Department, ruling with a similar fact pattern.

In O’Neill, a student who had been drinking fell from a second-floor balcony. The Third Department refused to hold the hosts liable, noting that the victim had not displayed telltale signs of intoxication. But the court stopped short of holding that, had the student exhibited outward signs of drunkenness, liability would have attached. Scudder and the majority found O’Neill irrelevant to the Parslow matter.

“Unlike the dissent, we do not attach any significance to the dicta of the Third Department in O’Neill,” Scudder wrote.

Justice Eugene Fahey (See Profile), in dissent, would have allowed the negligent supervision claim to proceed.

Fahey observed that Parslow, while an adult, was “still a minor in the eyes of the law for the purpose of purchasing alcohol.” He also noted that the hosts made no attempt to exclude underage drinkers from the party and “exhibited neither care nor concern” for any intoxicated guest.

“Consequently, in my view, the resident defendants assumed a duty to supervise guests at the party … through their control and possession of the house, as well as their presence at the house during at least part of that large, untamed affair,” Fahey wrote.

Philip Gulisano, counsel for the plaintiff and a partner at Burden, Gulisano & Hickey in Buffalo, said the ruling “gives Bryan his day in court to demonstrate why these people are responsible.”

H. Ward Hamlin Jr., a partner at Brown & Kelly in Buffalo and counsel for the lead defendant, was not immediately available for comment.