Reaching a “Tripping” Point

For co-ops and condos, being on a tree-lined street is usually a selling point. But tree pits – those small squares of ground around a sidewalk tree, frequently bounded by a metal guard – can also be hazardous. With apologies to Malcolm Gladwell, they can be a tripping point.

When that happens, as participants in Habitat’s online forum “Board Talk” wonder, why is the co-op/condo board of the adjacent building liable for lawsuits involving trees that the city planted of its own volition on a public thoroughfare?

“[T]his tree pit … was put in over a decade ago under the City ‘Plant a Tree’ program to beautify the block,” writes one commentator. “The City didn’t say anything about empty[ing] the pockets of our Co-op should someone trip and fall as a result of the ‘beautiful’ tree.’ Another says his board never even heard of a trip-and-fall incident near its building until a year after the alleged incident occurred, and now they’re being inundated by “constant demands for information (i.e., board minutes, e-mails, personal cell phone pictures, etc.) as well as numerous depositions.” Yet another says his building’s tree-pit suit has been going on for eight years.

Why isn’t this a simple insurance matter? What kinds of things might gum up the process? And just what is the difference between reasonable demands for discovery and a fishing expedition?

“‘Simple’ and ‘insurance’ are sometimes an oxymoron,” says attorney Geoffrey Mazel, a partner at Hankin & Mazel, who nonetheless notes that trip-and-falls generally are covered by a cooperative or condominium association’s liability insurance. “Most of the time, these things tend to be settled” before trial, he says. But there are a couple of ways such cases can drag on.

“The statute of limitations for negligence is three years from the date of the accident,” Mazel says. “If the attorney for the plaintiff waited the full three years to start the case, it is conceivable that litigation could take another three to five years, depending on how aggressively it moves along, how much discovery is held, and the backup in the court.” Adding to that backup is the fact that the city owns the trees and tree pits – and when the city’s involved in a court case “it just takes longer” than otherwise, Mazel says. “It can add back-and-forth between a board’s insurance company and the city’s insurance company.”

Ultimately, he says, “it becomes an issue of what caused the accident. Did the co-op somehow dig out the tree, trim the roots or create a condition? If so, the co-op might have liability.”

But it’s a damned-if-you-do, damned-if-you-don’t situation. Let’s say a tree’s roots protrude from the ground, causing a hazard. Correcting the hazard is the city’s responsibility. Yet if someone trips, it’s the co-op or condo that gets sued, rightly or wrongly, until liability gets sorted out. And if you took it upon yourself to do something about those roots, that definitely could make you liable.

“Generally, the only way a co-op can be liable for the tree is if you touch it,” Mazel warns. “Trying to take care of it hurts you, liability-wise.” Even something as simple as putting dividers or planters “can impute liability onto the co-op.”

So what do you do if there’s a potential hazard? “The first thing you should do is report it to 311 and complain to the city,” Mazel says. “Make a record that you’re asking for a condition to be fixed. Get pictures and put the city on notice of the condition. If something happens, you can always go back to the city and say it’s the city’s fault.”

As to discovery requests for every board document, you can push back. “Discovery in New York is fairly broad and it brings up another discussion about e-mail communications among board members. Limit your conversation about certain things to board meetings,” he advises, adding: “The lawyer for the insurance company can make a motion to quash or to limit discovery, if [the opposing counsel is] asking for too much material and it’s overbroad. That motion has to be timely, within a certain number of days after you get the [discovery] request. And if the request is overbroad, judges will limit the discovery.”

It all seems as if a board would be well-advised not to even plant flowers around a tree. But Mazel says it’s a matter of judgment. “If I lived there, I’d say, ‘Let’s make it beautiful.’ Just make sure your insurance company is aware of what you’ve done. Give ’em a call to say, ‘We’re beautifying our sidewalk.’ Because honestly, no matter what you do – touch it or don’t touch it – if somebody falls there, the board is likely to get sued.”