The case of the day is Newman v. Republic of Bulgaria (S.D.N.Y. 2017). Bulgaria owned a building in New York where its diplomats at the United Nations lived. The front entrance was covered by a canopy that covered the sidewalk in front of the building. The awning was supported by two posts, and two auxiliary poles. According to Edward Newman, the plaintiff, he was walking on the sidewalk in front of the building, tripped and fell over one of the polls that was lying across the sidewalk, and suffered serious injuries, including a broken nose, a knee injury, and a tear of the rotator cuff of his shoulder. The next day, the city cited the Bulgarian mission for a violation, and the mission fixed the problem that day. Newman sued in the New York Supreme Court, and Bulgaria removed the case to the federal court and moved to dismiss on FSIA grounds.
Newman cited the non-commercial tort exception to immunity, which provides jurisdiction in personal injury cases for injuries occurring in the United States and caused by the tortious act or omission of the foreign state or an officer or employee acting within the scope of office or employment (provided the act or omission didn’t involve a discretionary function). On the one hand, New York law requires property owners to keep sidewalks in a reasonably safe condition. But on the other hand, the law requires proof that the owner either created the dangerous condition, or failed to correct it after being put on actual or constructive notice. Newman made no allegations about how the Bulgarian mission caused the poll to fall onto the sidewalk. Instead, he made only general allegations of negligence. And the only allegation of notice concerned the notice of violation that the mission received after the accident. For these reasons, the court dismissed the complaint.
This may be overreading the case, but perhaps we can say that there is no concept of res ipsa loquitur in FSIA non-commercial tort cases?