It started as a brown spot on the ceiling. Then the plaster started to bulge. A few weeks later mushrooms and mold started to grow on the ceiling and walls. One unfortunate morning, while the tenant was taking a shower, the ceiling ripped open. Plaster, wall board, wood and debris fell onto her, striking her head, face, shoulders and knocking her off balance. She fell out of the bathtub, crashed into the adjoining sink and landed on the hard tile floor. The injured tenant crawled, naked, to the telephone to call 911 for assistance. This event resulted in a torn rotator cuff of her shoulder that required surgical repair and a disc herniation of her cervical spine requiring many months of physical therapy trigger point and epidural steroid injections. Shouldn't someone be held responsible for her injuries? Who will compensate her for her medical bills and time lost from work? What about her pain and suffering and loss of enjoyment of life?
The owner and possibly the managing agent of the building should be held accountable and made to pay for her damages. However, like all premises liability personal injury lawsuits, there are several significant elements of proof required before the plaintiff can succeed. A basic claim requires proof that the building owner or managing agent had a duty of care to the injured party; that they breached that duty of care; and that the breach of care was a proximate cause or substantial factor in bringing about the injury.
In New York State, the owner of a building or piece of property has a non-delegable duty of care for its structural integrity to all those who live on or visit the property. A managing agent may or may not have a duty of care to the tenants. The managing agent will have a duty to the tenant in three situations: 1 - It had an all encompassing management contract with the owner that was so pervasive that it in essence stepped into the shoes of the owner to perform all services at the building; 2 - It held itself out to the tenant or guest in a such a manner that the tenant or guest detrimentally relied upon the managing agent's representation; or 3 - It set in motion the force that caused or created the dangerous condition.
There will be a breach of the duty of care when there is a dangerous condition that the defendant knew or should have known about and failed to remedy or repair. The dangerous condtion is usually the easy part. A leak in the ceiling - or more likely than not- the pipes concealed in the ceiling - causes structural damage to the ceiling, walls and other parts of the building structure that over time will weaken those structures. People have an expectation that the ceiling will not collapse. The element that may be missing and can be the death knell of your claim if it is not proven, is the element of notice. Did the landlord know about the condition (ie- someone told the landlord or the landlord observed the condition - actual notice) or should have the landlord, in the exercise of reasonable care, discovered the dangerous condition (visits to the apartment over a period of time that the condition existed - constructive notice).
If you observe a water leak condition or stains or mold or mushrooms, document it immediately and bring it to the attention of the building owner and managing agent. Pictures are worth a thousand words. Telling the building superintendant is a start but the super may not always tell the powers that be of the condition. He may not even be an employee of the building owner or managing agent. Preferably make complaints in writing (before any accident occurs) and keep proof of delivery to the responsible parties. If you are a tenant involved in a rent dispute or landlord /tenant proceeding, make sure to make your complaints part of the court record, stipulations or orders.
If the ceiling does collapse and cause injury, have someone document and photograph the condition immediately before it is cleaned. If possible, have the open ceiling inspected by a building inspector or engineer to document what the origin of the leak was and what was the cause. You must take every step possible to undercut the building’s claims that it did not know the condition existed or that it just occurred over a short period of time that did not allow them to make repairs. The building may also claim that the water leak was caused by the improper or careless use of water, toilet, sinks and or baths by the tenant in the unit above your apartment. Speak to your neighbors and obtain statements from them to counter this defense.
Finally be ready to describe the precise manner of being struck by the falling debris and how that falling debris caused the injury. The mechanism of injury is very important. Being struck by falling plaster while lying still on the bed will not cause a torn meniscus in your knee unless there is some other movement, twisting or fall off of the bed.
There are many issues to cover and like all personal injury claims, the devil is in the details. Hire an attorney early on in the process. Use counsel with experience in similar cases and who can and will use qualified experts to help prove your claim. Your attorney must also be adept at obtaining the proper discovery from the building and its agents and undertake a detailed deposition of the building personnel. Early and thorough investigation will serve as the cornerstone of your success.