Children at Play. Lawsuits in the Works?

Kids will be kids. Which means they’ll turn just about anyplace into a play area – including the common areas of a co-op or condo building. A shareholder at a Yorkville co-op reports that children routinely run up and down the building’s stairs and play ball – unsupervised by adults – in the outdoor entry area. Could the building get sued if one of the rambunctious tots got hurt?

“It’s certainly possible,” says the Ask Real Estate column in the New York Times, though the family of an injured child could not sue individual shareholders. While the building’s insurance would cover litigation costs, “the outcome would be hard to predict,” says attorney Aaron Shmulewitz, a partner at Belkin Burden Wenig and Goldman. If the co-op rules prohibit turning the stairwell into a Jungle Jim or the courtyard into a ball field, the board could argue that the injured child violated the rules. But the argument would be a “wild card,” Shmulewitz says, because the parents could argue that the co-op failed to enforce its own rules and therefore can be held accountable.

Beyond questions of legal liability, there’s an underlying community issue. “The board should take a hard look at whether to set aside a place for the children to play that doesn’t pose a danger to other residents,” says attorney Howard Schechter, a partner at Montgomery McCracken Walker and Rhoads. The board should also enforce its rules about common-area behavior – or implement clear ones if the current rules are vague or silent on the matter.

Creating a safe playroom or playground could be a win-win for the building: a way to keep children and adults out of harm’s way, and an amenity to attract future buyers who have kids.