Documents included with offering plans (i.e. declarations, by-laws, rules and regulations, etc.) and other evidence are used to determine whether the board of a residential cooperative (co-op) or condominium or the owner of an apartment is responsible to fix failures in a building system.  Keep in mind, however, that a board or managing agent may become responsible for damages (which are otherwise the obligation of the apartment owner) if they voluntarily or gratuitously inject themselves into addressing or remediating a unit owner’s problem.

In 2002, the Court of Appeals enunciated what has become commonly known as the “Espinal exceptions”.

Espinal, and subsequent decisions, have identified three situations in which a party who voluntarily or gratuitously renders services may be said to have assumed a duty of care:

First, where, in failing to exercise reasonable care in its performance, the party “launches a force or instrument of harm”;

Second, where the injured party detrimentally relies on the continued performance of the acting party; and

Third, where the acting party has entirely displaced another person’s duty to maintain the premises safely.

Several cases illustrate the point.  In one case, for example, an appellate court found that issues of fact existed, where, in its attempts to repair a minor leak, it was claimed that the managing agent negligently exacerbated the problem and, as a result, launched a force or instrument of harm.

In another case, the building attempted to fix a leak in a unit on several occasions; however, the problem nevertheless persisted and culminated in a flood of water into the owner’s apartment.  The Court found an issue of fact as to whether the attempts to fix the water leak exacerbated a condition that led to a more serious flood.

And, in a final case, the appellate court found that an issue of fact existed as to whether or not a management agent negligently created or exacerbated a dangerous condition so as to have “launched a force or instrument of harm”.  The tenant sought damages for injuries she allegedly sustained when a window installed by a contractor engaged by the management company fell out of its tracks and struck her in the head as she attempted to close it.  The Court found that factual issues existed as to what parts the window contractor replaced; whether parts were replaced by someone else or whether the contractor altered or repaired the spring latch mechanism provided by the window manufacturer prior to or during installation; and whether the window was negligently installed.

Lesson learned:  A co-op or condo board or managing agent is liable for its own negligence and also may be found to be liable where it somehow intervenes in the chain of events.  This does not mean that management should not try to assist shareholders.  However, building staff should provide services only within their areas of competence and arrange for building residents to be served by outside vendors when appropriate.