Slip and Fall
By: Frank Lovece
In 2010, the board of the St. Tropez condominium at 340 East 64th Street in Manhattan held its annual meeting in an unfinished space. It may have saved on renting a hall, but it wasn’t the best choice the board made that year. The condo was later sued by a resident who had tripped over an unseen hole in the paper-covered bumpy floor. “A lot of annual meetings are held in gyms,” says attorney Adam Leitman Bailey, principal of his eponymous law firm. “Well, that gym is not there for an annual meeting.”
Oops. Oh! OWW!
It is easy for a board to find itself embroiled in a slip-and-fall lawsuit, “among the most common” type of suit cooperatives and condominiums face, according to Bailey. And though you may have taken every precaution and been as prudent as a schoolmarm, you could still face a payout simply because it’s cheaper than fighting a claim in court.
Patricia Batih knows. As vice president of sales at the insurance brokerage Mackoul & Associates, she’s seen it all. “They come up with a doctor’s note: ‘Oh, yes, they twisted their ankle and missed work.’ Somebody says they hurt their back; you can’t prove if they’re in pain or not. In some cases, it will cost more in defense costs than just to give them $10,000 and get rid of them.” Yet a “payout” could affect future premiums.
And you could lose. New York Labor Law Section 240 says if someone gets injured from a fall, the owner of the building is liable, even if the owner has not been negligent or is ignorant of negligence. “Let’s say I’m a shareholder having my apartment painted,” says attorney James Samson, a partner at [redacted]. “I hire a contractor, he brings in painters. One of them falls off a ladder. His lawyer sues the cooperative, the managing agent, the shareholder, and the contractor. The contractor is covered under workers’ compensation. The shareholder says, ‘I hired the contractor, he’s supposed to have insurance, leave me alone.’ They get dismissed from the suit. But not the co-op and management. They’re both potentially liable under Section 240.”
A cross-section of insurance brokers, managing agents, and attorneys reported that these were the five most common slip-and-fall areas you should guard against: (exterior) uneven sidewalks and slippery snow and ice and (interior) wet floors, dangerous floor coverings, and slippery pool areas. Once you’ve identified them, there are steps you can take to protect yourself from suits and, barring that, ways you can defend yourself once a suit is filed.
The Hazard Checklist
Broadly speaking, there are two types of slip-and-fall (also called trip-and-fall) cases: exterior and interior.
1. Uneven sidewalks. Exterior slip-and-falls are the most common, since many more people use the sidewalk around a building, residents included, than enter a building. That increases the chances of a sidewalk slip-and-fall. And even though your building doesn’t own the sidewalk, it bears responsibility if pedestrians fall on it.
That’s been the law since September 2003, thanks to three amendments to the city’s administrative code that do not apply to one-, two-, or three-family residences. Co-ops, condos, and rentals, however, must keep city sidewalks “in a reasonably safe condition” and must carry insurance for any injuries sustained on those sidewalks.
Managing agents and attorneys agree that one of the biggest causes of exterior slip-and-falls is tree roots. And since the city doesn’t let you deal unilaterally with sidewalk trees, and doesn’t rush to deal with them itself, boards can find themselves in a Catch-22 situation.
“Around our perimeter, we have oak trees planted years ago when dinosaurs roamed the Earth, and now their roots lift up the sidewalk cement,” says Mary Fischer, board president of Georgetown Mews, a 65-acre complex of garden-apartment co-ops in Kew Gardens, Queens. When the city didn’t respond to repeated entreaties to trim the roots, “I said to my landscaper, ‘Take the roots of the trees back’ – and we got hit with fines” (a whopping $40,000 worth, according to the board’s attorney).
So what can you do? Fischer worked with local politicians to reduce the fine and contacted the parks department for a list of approved arborists. “They wanted to see that an arborist came out and that the root removal was done in a proper manner,” she says.
But generally you have three choices. The first is trimming the roots and replacing the cement flags (i.e., squares) of sidewalk. The second is leaving a soil “apron” around a tree (an imperfect solution, says Peter Lehr, director of property management at Kaled Management, since “you have this big open flag with a tree in it and a two-inch drop to the dirt. Fill it in a bit with bricks.”). And, third, you can have a sidewalk-grinding company grind down the uneven edges.
Whatever you do, cautions property manager Michael Wolfe, president of Midboro Management, “There are expansion joints [between the flags] that allow the concrete to expand and contract” because of weather conditions. Without expansion joints, the concrete would crack when it expands. Those joints need to be filled with caulking at a level even with the sidewalk. If that caulking is damaged or missing, a high heeled shoe could get stuck in there, causing someone to trip.
2. Slippery snow and ice. A seasonal issue is snow and ice. Here, the city’s “Removal of Snow, Ice, and Dirt from Sidewalks” rule (the New York Administrative Code, Section 16-123) gives you the leeway of what’s colloquially called “the four-hour rule.” According to the code, a building is liable only if it created the condition or if it didn’t clear snow or ice “within four hours after the snow ceases to fall” (a building doesn’t have to clear snow or ice between 9 P.M. and 7 A.M.). If the snow or ice is frozen so hard “it cannot be removed without injury to the pavement,” you have until “as soon thereafter as the weather shall permit.” One recommended practice is to keep logs of when workers shovel snow or remove ice.
You still need to stay on top of things, advises Bailey, who notes that slipping on non-removed snow and ice is a significant problem for which boards should prepare. “You should have a policy that if there’s inclement weather, your staff is out there not just once but every hour or two cleaning the sidewalk and making sure ice doesn’t build up,” he says. “Another thing I like to see is that they put out signs: ‘Danger, Icy Conditions.’ Now you’ve warned the people walking by to be careful.”
That’s not a get-out-of-jail-free card, he notes. “The co-op or condo has to behave as a reasonable entity. But if you’re shoveling and putting up signs, you’re looking good in court,” he says.
It also helps to be proactive. “If the forecast is for ice or snow, some of my staff is already here sleeping over so they can be out shoveling in the morning,” Fisher says. “I don’t want to wait for people to come from where they live because if there’s a transit or manpower issue, then there’s not enough people here to do the complex.”
3. Wet floors. Managing agents and attorneys agree that, inside your building, this hazard usually centers on worn or badly laid carpets and on the absence of rain mats and runners on inclement days.
“The super shouldn’t have to tell the porter to put the runners and the mats out,” says Kaled’s Lehr. “That should be standard practice.” Moreover, he notes, “if the mats are saturated and people are walking off leaving puddles of water, give the doorman a mop. If he doesn’t want to mop, then at least have him get on the radio and call the porter” about hazardous water on the floor. “If there’s no doorman, the porter should check on the lobby regularly during heavy rain.”
4. Dangerous floor coverings. “Make sure your [floor coverings] are feathered,” says Wolfe, using a term that means going from a higher surface to a lower surface gradually with a rubber border. “This way there’s nothing to trip over,” he says. To help prevent curling, tape the carpet, mat, or runner down with a specially designed carpet tape that goes underneath. “You don’t want regular double-stick tape, which leaves a sticky residue on the floor,” he says.
5. Slippery pool areas. Pools are a hot spot of potential trouble. “That’s the most dangerous place in a co-op or condo” for slip-and-falls, Bailey says. “We have [swimmers] sign a waiver. You want to require that parents be there with children under a certain age and that a lifeguard is on duty.”
Facing a Lawsuit
Yet despite all your efforts, sometimes a lawsuit is unavoidable. So what’s the process when your co-op or condo corporation gets sued? Generally, three steps:
The co-op or condo corporation is notified. When an alleged accident happens, if no one sees it or is aware of it, your property manager generally will receive the complaint in the mail.
The co-op/condo attorney and insurance broker are notified. This should be done immediately. The insurance broker will get the claim filed, says Batih. “Your broker should report it to both your liability carrier and your umbrella carrier” if they are different companies, she says. “If you only report it to your liability carrier, and the [injured party] dies eight months later, and the broker only notifies the umbrella carrier then, it could be declined for failure to file a claim in a timely fashion.”
The board stays out of it and refers any question or communication to its attorney and/or insurance broker. Once the complaint is in the hands of a manager, an insurance broker, and an attorney, there’s no reason for a board member to speak with the claimant or the claimant’s professionals. “You can open up your mouth, and a whole can of worms can come out,” Batih warns. “Just tell them, ‘Please contact our insurance agent or the adjuster or attorney’ and leave it at that.” Any correspondence a board member may get should be forwarded immediately to the manager and attorney.
Keep in mind that the insurance company may settle out of court if it believes it is cheaper than going to trial. “Under virtually every general liability policy, the carrier does not need the insured’s consent to offer a settlement,” Batih says. “The carrier has the right to say, ‘We’re paying the claim and closing the file.’” You may want to stand on principle and fight to the end. Don’t. The insurance company won’t be paying for it.
Caught on Video
Documentation is important. When the incident happens, instruct the building staff to get witnesses’ names and phone numbers so that the attorney and insurance company can contact them for their statements.
“There is a lot of fraud out there,” says Batih. “We’re working with a client where a woman claimed she tripped on the premises at such and such a time and date. Fortunately, the building has video footage showing her coming out of the building then, perfectly fine, and walking away.” Indeed, she says, “video surveillance” is an ace. If a particular outdoor area isn’t covered by your own cameras, check to see if it’s covered by your neighbor’s cameras, suggests Lehr.
In the end, prevention and documentation – particularly video footage – are the best ways to mitigate slip-and-fall suits. “If you lived in a house, you would do everything so that somebody would not trip and fall,” Fischer says. “A board member should look at the cooperative or condominium the same way.”
Concludes Bailey: “New York City recognizes that people walking by may slip and fall. The thing is whether you’ve been negligent. If you did everything you’re supposed to do and someone slips and falls, that’s just an accident and not negligence, which is the standard required for the co-op or condo to lose the lawsuit.”