Tobias v. Lewis

In Tobias v. Lewis (182 AD 598 [1st Dept 1918], aff'd 230 N.Y. 571 [1920]), the plaintiff "was struck on the head and severely injured by a board which was the leaf of an extension table and fell or was thrown from the front of the building above where she was standing"; "tenants were accustomed during hot weather to use similar boards to cover these openings in the platform of the fire escape hot nights and put bedding thereon and sleep there"; and "defendants had either actual or constructive notice that their tenants were thus using the fire escape at night, but there is no evidence that this board had been on the fire escape before it fell that night or that it fell from the fire escape" (id. at 599-600.) After stating that the defendants were "not liable for the negligent acts of their tenants," the court assumed that "the duty devolved upon the defendants at common law as owners to forbid these unlawful practices by their tenants," i.e., obstructing the fire escapes, but concluded nonetheless that "it cannot be found or held that failure to perform such duty was the proximate cause of the accident." (Id. at 601-602.)