Two Temple University students were hospitalized after falling four stories while they were allegedly trying to take a selfie at a rooftop party. The students were at a party around 2 a.m. on Saturday when they fell from the rooftop and landed in an alley. The management company insisted that there is an ample barrier, but the case could raise some challenging questions in a tort action for both sides.
Notably, this is the second such fall for Temple students. In 2013, Temple freshman Ali Fausnaught, 19, fell to her death a few blocks away from the most recent accident. The roof of that building had only a 10-inch ledge, which seems grossly negligent if the area is open to guests. Indeed, even if confined to employees, a ten-inch ledge would make accidents highly foreseeable.
In this case, Temple University student Arnav Johri is quoted as saying that the barrier was insufficiently high, “[s]o if you’re drinking and you run right into it, it’s really easy to slip right off because it only comes to like a little halfway between your knee and hip.”
Assuming that the description is accurate, it could raise a myriad of tort issues. First, assuming that the building was in compliance with municipal codes on the height of the barrier, compliance with such codes do not make a company immune. Cases like Grand Trunk Railway Co. of Canada v. Ives, 144 U.S. 408 (1892), have long established that compliance with statutory standards are not conclusive evidence of reasonableness. While the violation of a statute can be negligence per se, mere compliance is not determinative as a defense on negligence.
The question is whether such a low barrier is reasonable, particularly if the roof is open to guests, let alone guests drinking and partying. In my view there would be a substantial claim of negligence in such a barrier in a public area on top of a building. There are a host of ways for people to be pushed over such a barrier or position themselves dangerously on or around the barrier.
If the area is closed to the public, the status as effective trespassers can bar recovery. However, even in such a case, there can be liability for trespassers when there are discovered or anticipated trespassers.
Assuming that negligence is found, there remains a serious plaintiffs conduct question. Under the old contributory negligence standard, the two students would be entirely barred from recovery since even one percent of fault attributed to the plaintiffs would result in such a bar. Most states are now comparative negligence jurisdictions following either pure or modified approaches. Pennsylvania (under PA General Assembly Statute §7102) is a modified or partial comparative jurisdiction where a plaintiff can be contributory negligent and recover so long as she was less than 51 percent at fault. If she is found to be more than 50 percent at fault, she is entirely barred. Note however that your percentage of fault below 51 percent is still applied against your damages. Thus, if you were awarded $100 but found to be 40 % at fault, you would recover only $60.
The building could argue that there was negligent conduct at the party, including drinking. It is not clear if these students were drinking but it was very late and the party reportedly did involve alcohol. More importantly, if the students were taking a selfie, there may have been reckless behavior. I could teach a whole course on selfie torts, as shown in many prior postings on this blog. If the students were both heavily drinking and taking reckless action, it could cross the threshold for a bar on recovery. Indeed, the party might not be in compliance Covid guidelines (though this is the risk that those rules are designed to protect against and could be viewed as inapplicable as a standard of care). However, the building must anticipate such foreseeable misconduct, if it occurred. Rooftops parties are common and alcohol is commonly present at such parties. The view itself is an attraction for those wanting pictures.
The chances of a lawsuit would seem high in this circumstance. Indeed, if that barrier was as low as described and the area open to the public, it would seem a strong potential tort action.