THIS ARTICLE will explore some of the legal, insurance and ethical issues involved when defending managing agents in premises litigation involving claims of nonfeasance. The initial focus will be on a recent decision from the First Department which may signal a change in the well settled doctrine that a managing agent will not be held liable for nonfeasance unless it has complete and exclusive control over the property. The article will then explore the various implications of employing this defense.
Most premises liability actions are founded on claims of the defendant’s nonfeasance. Nonfeasance is the failure to act, as opposed to acting without due care, otherwise known as misfeasance. The essence of the claim is that the defendant did not carry out its contractual obligations. For example, the managing agent failed to remove food debris from the lobby floor or failed to keep the elevators in good repair.
