Frank Lovece in Board Operations on December 20, 2013
Bump in the Road
On the evening of April 28, 2010, the board held a meeting for unit-owners in a vacant commercial space on the ground floor. Chairs were set up on the floor, and a pink paper construction runner covered the unfinished concrete perimeter of the seating area. That's where Ellen Pinto, one of the owners, was walking when she fell and injured herself. Ironically, she was 'just about to turn around and tell the woman behind her to be careful because the floor under the paper was, she recalled in a lawsuit, "all bumpy, really badly bumpy."
Not that this might have come as a surprise to the casual viewer looking through the windows from the sidewalk. As Pinto put it, the space was "a mess ... unfinished .... [and] that most of the flooring was unfinished." Still, no one was expecting that her foot would get caught in a hole under paper — one that she never saw, she said, because it was covered by the pink paper and she never looked under it. And, really, who goes around lifting up paper runners to see what the floor is like underneath?
Just over a year after the accident, Pinto filed a lawsuit against the condo board and the managing agent, Gumley-Haft, although she essentially later dropped that company from the suit. She argued that the board — whose treasurer, Marc Feuer, said had been been trying to beautify the space with the pink construction paper — was negligent in that their action concealed any defects the floor might have had.
In its defense the board said, among other things, that Pinto had been aware of the "open and obvious" condition of the unfinished cement floor, having seen it through the ground-floor windows; that the defect was "trivial"; and that she assumed the risk of tripping by having turned around to speak with someone immediately before she fell.
Pinto replied that the defect, were it not concealed by the construction paper, would have been open and obvious and far from trivial. And the court said her having seen the cement surface through the windows during her daily walks was irrelevant.
The upshot? Judge Barbara Jaffe of New York State Supreme Court in Manhattan ruled last month that neither side could have the case dismissed in their favor as a summary judgment. The case can go to trial. Holey floor, Batman.
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