STAIRWAY FALL INCIDENT REPORT

Transcription

1 FILED: NEW YORK COUNTY CLERK 04/25/ :18 PM INDEX NO /2015 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/25/2016 STAIRWAY FALL INCIDENT REPORT Page 1 Location: th Avenue New York, NY of 16

2 February 17 th, 2016 Attorney Charles Sabel 444 Madison Ave. 18 th Floor New York, NY Page 2 Re: Keren BenShoshan v. Forty-Seventh Fifth Co., LP- Index #153594/2015E-Date Of Accident; May 14, 2013 Dear Attorney Sabel, INTRODUCTION As per your request, I have inspected the subject property, reviewed the surveillance video and documents enumerated below related to a personal injury accident suffered by your client, Ms. Keren BenShoshan. My opinions are contained within the following report. The purpose of this report is to analyze the facts of the case as they relate to the stairway accident on May 14, Ms BenShoshan fell while descending down a stairway located within th Ave., New York, NY The opinions expressed within this report are based upon my years of experience in the construction and building inspection industries and related education, certifications, training and licenses. My opinions are also based upon my review of the documents, standards and codes as enumerated below. I reserve the right to supplement, amend or modify this report and my opinions at any time in the future if any additional evidence becomes available. BACKGROUND: On May 14 th, 2013, Ms. BenShoshan was descending down the stairway leading from the first floor offices to the basement offices located within the subject building. While descending the stairway, Ms. BenShoshan fell from the top of the subject stairway at the 2 nd landing (descending) and to the lower section of the stairway, suffering significant personal injuries. (See attached photos and video of incident) 2 of 16

3 STATEMENT OF OPINIONS: 1. The subject stairway contained several dangerous conditions and defects. 2. The dangerous conditions and defects were created by the building owners and/or their predecessors and in any event existed for many years which provided ample opportunity for the building owners to correct. 3. The building owners failed to correct the dangerous conditions and defects in the stairway which caused or contributed to Ms. BenShoshan's accident. 4. The subject stairway as originally used and constructed in 1925 connected the lobby/1st floor with storage use in the basement/cellar. 5. The basement/cellar use was changed by the building owners and/or their predecessors to offices but the stairway use was never upgraded to comply with industry safety standards and good and accepted practices in the industry relating to such use. Essentially, the owners continued to use a stairway originally designed for limited utility use for storage in the basement/cellar for many years after the use was changed to offices and other uses which led to the multitude of dangerous conditions and defects in the stairway addressed in this report. 6. The owner had an obligation pursuant to industry safety standards, good and accepted practice in the industry and applicable building and administrative codes to ensure that the subject stairway was safe. (NYC Building Code/Administrative Code, C , C , Replaced by C , American Society of Testing and Materials, ASTM F to ASTM F ) 7. The stairway contained a ceiling soffit height of 5'9". This was a significant hazard and a dangerous visual distraction to persons such as Ms. BenShoshan descending the stairs. 8. Industry standards and good and accepted practice in the industry call for a minimum headroom clearance of 80 inches or 6'8" (ASTM F Section 4.6, 6.1.1, ASTM F Section 5.6,7.1.1) (IBC 2012 Section 1009 and ) (International Building Code, IBC 2012 Section ) 9. The stairway treads were installed approximately 25 years prior to my inspection. They were dangerous and defective as they were a monolithic geometric pattern, presented no differentiation of color or contrast or material on the edges, provided no orientation edge to define, discern or delineate the edges for someone such as Ms. BenShoshan while descending the stairs. (See Attached Photographs) 10. Industry safety standards and good and accepted practice in the industry call for edges that provide clear visual orientation, definition, discernibility and demarcation. (ASTM F Section 6.1.2, ASTM F Section 7.1.2) (International Code Council and American National Page 3 3 of 16

4 Standards Institute, ICC/ANSI A 117 Section 504.5) (Contemporary Practices in Stairway Design 2013 Section ) 11. The subject stairway was dangerous and defective in that it lacked dimensional uniformity. Further the riser height on the stairway where Ms. BenShoshan Fell was 8 1/4 inches and 7 7/8 inches respectively, both of which are in excess of industry standards for riser heights. (ICC/ANSI A Section 504.2) (IBC 2012 Section and Section )(Contemporary Practices in Stairway Design 2013 Section ) 12. The importance of maintaining dimensional uniformity and limitation on riser heights is widely accepted in the industry in that even small variations have significant impact on persons such as Ms. BenShoshan while descending the stairs. These defects existed for many years in that the steel stairway as a structural element of the property was not likely to vary over time and there were no signs of excessive wear and tear during my inspection as can be seen in the attached photos. (Contemporary Practices in Stairway Design 2013 Section , Journal of Safety Research, 26(3) ) (The Staircase, Studies of Hazards, Falls and Safer Design, John Templer 1992) 13. The subject stairway contained an additional defect, a "boxed in" section of wall, where Ms. BenShoshan fell, which protruded into the area of the stairway by approximately 4 ¼ thus reducing the width and creating an irregular shape and additional hazard on the stairway. Based on the location and configuration this was likely constructed by the owners and/or their predecessors to house pipes or utilities for the building but in any event have been present for many years. 14. Industry safety standards and good and accepted practice in the industry call for maintaining a consistent dimensional width and unobstructed pathway on the stairway. (IBC 2012 Section ) 15. The prior referenced 5 9 soffit ceiling on the stairway created a dangerous shadowing condition in the area where Ms. BenShoshan was descending. 16. Industry safety standards and good accepted practice in the industry call for the avoidance of any shadowing effect on the stairs. (ASTM F F Section 4.5.3& ASTM FF Section 5.5.3). 17. The subject stairway lacked a handrail on the left side (descending), which both independently and in combination with the other hazard hazardous conditions set forth above created a dangerous and defective condition. In the video, as Ms. BenShoshan was falling she reached to the left wall for the handrail which was not present and instead somewhat desperately attempted to use the boxed in section of wall referenced above as a handrail. 18. Industry safety standards and good and accepted practice in the industry call for a handrail on both sides of the stairs in a commercial stairway such as this, especially in light of Page 4 4 of 16

5 the numerous other dangerous conditions and defects identified that existed while descending the stairway. (ICC/ANSI A117.1 Section 505.2) (IBC 2012 Section ) (ADA Accessibility Guidelines, ADAAG 2002 Section 4.9.4) (Contemporary Practices in Stairway Design 2013 Section ) 19. In addition to the above dangerous conditions and or defects created by the owners and/or their agents and in any event which of been in existence for many years and certainly prior to the current tenancy in 1998, thereby giving the owners ample opportunity to correct, there are also numerous code violations from the 1938 NYC Building Code/Administrative Code as set forth below. 20. The 5'9" headroom on the stairway violates (6.1.4) See which requires 6'11" (83 inches). 21. The "boxed in" section of the stairway reducing the width of the stairway by 4 ¼ inches infringing upon the stairway width violates ( ) C which requires 44 inches. 22. The lack of dimensional uniformity create variance of 3/8 " from one riser to the next at the top of the subject stair violates ( ) C The riser heights in the area of the accident were 8 1/4 inches and 7 7/8 inches respectively and violate ( ) C which provides for a maximum height of 7 ¾ inches. 24. The lack of a handrail on the left side violates ( ) C which requires hand rails on both sides. 24. The above dangerous conditions defects code violations and/or failure to comply with industry safety standards and good and accepted practices in the industry caused and/or contributed to Ms. BenShoshan's accident and serious injuries. Page 5 PROPERTY HISTORY AND SITE INSPECTION: Based upon my inspection and research the subject property was originally constructed in A second building, which was connected to the original building, was constructed in The stairway connecting the main floor with the lower level cellar had a designated use according to Department of Building records as storage. In 1965, the use of the lower-level cellar was changed by the building owners. The cellar was converted by the building owners from storage to office use as well as show rooms, employee lunchrooms and storage. The stairway, which was originally constructed as a stairway to accommodate and service the limited utility use for storage, was never updated by the building owners to accommodate the new office use. 5 of 16

6 The subject stairway contains 4 landings and 18 stairs. There is only one rail along the right side (descending). The stairway and ceiling soffit, shown in the photographs and video, was constructed by the owners and/or their predecessors and in any event existed for many years. The height of the ceiling soffit was 5 9. This created a significant visual distraction and hazard and was a dangerous departure from good and accepted safety practices in the industry. The construction of the ceiling soffit in that area also created a shadowing effect on the stairs. This is also a visual impediment for a person, such as Ms. BenShoshan, descending the stairs in that area. Page 6 Also observed were the stair treads where Ms. BenShoshan fell were monochromatic without any orientation edge. There was no clear visual definition, discernibility and demarcation of the leading edges of each tread. This caused significant visual difficulty in descending the stairs and observing the leading edge of the stair treads. Based upon my observations and experience as well as the style, wear and history of the stairway these treads were not part of the original installation but were installed by the building owners and or their predecessors at least 25 years prior to my inspection. The riser height on the first stair where Ms. BenShoshan fell was 8 1/4 inches and the riser height on the following stair was 7 7/8 inches, both of which are in excess of the maximum permissible height under the code and applicable standards. Based upon my inspection, research and experience the building owners changed the use of the cellar from storage to offices and showrooms in 1965 and created and permitted dangerous and defective conditions to exist on the stairway and took no action to correct these conditions causing or contributing to Ms. BenShoshan's fall and significant personal injuries. This is a dangerous departure from good and accepted safety practices in a commercial office stairway. SITE OBSERVATIONS: The date of my inspection was December 9 th, During my inspection, I took various measurements and photographs, and made numerous observations, as follows: 1. LACK OF HANDRAIL ON BOTH SIDES: There exists only one handrail from the top of the stairway to the bottom, measuring 31 inches above the leading edge of the stair treads. COMMENTARY: Building codes and industry standards require a handrail on each side of a commercial stairway. Given the dangerous conditions that existed on the stairway a handrail on 6 of 16

7 each side should have been installed by the building owners. The change in use was made, however the stairway was never upgraded to provide adequate handrails. The failure to do so is a dangerous departure from good and acceptable safety practices in a commercial stairway. I also note in the video of the incident that Ms. BenShoshan appeared to reach for a handrail on the left side of the stairway. Page 7 2. DANGEROUS CEILING HEIGHT OF ONLY 5 9 SERVING OFFICE USE: In the direction of descent, also when standing on the 2 nd landing (descending) directly at eye level, there was a soffit (dropped area of the ceiling) which when measured, only measured 5 feet 9 inches above the leading edge of the stair treads. This exceedingly low headroom is a significant visual distraction. (See Attached Photographs) COMMENTARY: New York Building codes require a stairway height of at least 83 inches (6 11 ) for a commercial staircase. I have reviewed codes and standards from numerous jurisdictions from throughout the United States. The minimum requirement, in any code or standard, for commercial stairway height is 80 inches of clearance measured vertically from the leading edge of each stair tread. The NYC Department of Buildings website listed the cellar as being used initially for storage. The use of the basement/cellar was changed to include office use. According to the NYC DOB website this change in use occurred beginning in This conversion was made, however the stairway was never modified or upgraded to provide adequate headroom. The failure to do so is a dangerous departure from good and accepted safety practices in a commercial stairway. 3. LACK OF ORIENTATION EDGE AND MONOCHROMATIC DESIGN/VISUAL DISTRACTION: The stair tread covers gave the appearance of being monochromatic, causing difficulty in discerning the leading edges of each stair tread, when descending the vertical run of stairs, consisting of 11 steps. There is a lack of an orientation edge on the treads. COMMENTARY: The subject stairway previously functioned as a stair serving a cellar storage area. The building owners and/or their agents installed the stair tread covers, based upon my experience as well as the history of the stairway use, wear & design, at least 25 years ago. The monochromatic design and lack of an orientation edge present significant visual impairments while descending the stairs. The failure to do so is a dangerous 7 of 16

8 departure from good and accepted safety practices and industry standards in a commercial stairway. 4. RISERS EXCEED MAXIMUM HEIGHT REQUIREMENTS AND LACK DIMENSIONAL UNIFORMITY: When I measured the vertical rise of each stair tread, I also observed dimensional non-uniformity from one riser to the next, specifically the riser one step before the 2 nd landing (descending) measured 8 ¼ inches vertical rise whereas the riser directly before it measured 7 7/8 inches. The vertical rise between the 2 nd landing (descending) and the next stair tread (also descending) measured 7 7/8 inches. Page 8 COMMENTARY: Building codes and industry standards require dimensional uniformity from one step to the next in all stairways, both commercial and residential. The building code in place at the time of the cellar conversion requires dimensional uniformity within a stairway. 5. LOW SOFFITT/CEILING CAUSED SHADOWING EFFECT: The low soffit/ceiling also caused a variation in lighting from the top of the stairway to the middle of the stairway created a shadowing effect. COMMENTARY: The ceiling soffit caused a shadowing effect from the top of the stairway to the bottom. This combined with the other issues cited above, made the stairway more hazardous. This is a visual distraction and not in compliance with industry standards. 6. THE WIDTH OF THE STAIRS IS NON-COMPLIANT: There exists a boxed-in section of wall to the left of the lower section of the stairway, where Ms. BenShoshan fell, protruding outward by about 4 ¼, thus reducing the width of the stairway by that amount. COMMENTARY: The building code in place at the time of the conversion of the cellar area to offices required the width of the stairway to be 44, with exceptions made for the protrusion of handrails and stringers within the stairway. The boxed-in section of wall previously constructed by the building owners is not a handrail and therefore does not meet this exception, thus reducing the required width of the stairway by 4 ¼. This obstruction is not in compliance with good and accepted safety practices, codes and industry standards in a commercial staircase. 8 of 16

9 DOCUMENTS REVIEWED, DATA & INFORMATION CONSIDERED: 1. Surveillance video of subject accident 2. Building Code of the City of New York, 1938 (NYC Administrative Code) 3. Building Code of the City of New York, 1968 (NYC Administrative Code) 4. Certificates of Occupancy for the property from the DOB NYC website 5. Floor plan of First Floor and Cellar accompanied by the current lease 6. Photographs 7. Video of the accident 8. Codes, industry standards and industry literature referenced below. Page 9 APPLICABLE BUILDING CODES: Following are the applicable building codes/administrative code sections related to the subject stairway: 1. Building Laws of the City of New York, 1938 Building Code a. (6.1.4) C states that the minimum headroom in required stairways is to be 83. The headroom within subject stairway measures only 69 above the nose of the stair treads, 14 lower than that which code allows, which is considerable and violates this section of the code. I note that even in the 1968 code C (c) the minimum headroom clearance for stairs is 84. b. ( ) C states that the minimum width of a stairway is to be 44 throughout its length. Although the stairway exceeded this requirement, the lower section of the stairway where Ms. BenShoshan fell contained a 4 ¼ protrusion of the boxed-in section of wall, thus violating this section of the code. c. ( ) C sates that the risers and treads are to be of uniform width and height within any one flight of stairs. The stair risers varied by as much as 3/8 from one riser height to the next, thus violating this section of the code. The tread width on the first stair is 11 inches. I note that even in the 1968 code C (e)(2) also requires that the riser height and tread width be constant. The 1968 code further requires, C (e)(1), that the sum of the two risers plus one tread shall not exceed 25 ½. d. ( ) C states that the maximum riser height of a stair riser is to be no greater than 7 ¾. The riser height of the subject stairway, particularly within the path of travel where Ms. BenShoshan fell, contained riser heights as much as 9 of 16

10 8 ¼ to 7 7/8, thus violating this section of the code. I note that even in the 1968 code C (e) Table 6-4 also requires a maximum riser height of 7 ¾. e. ( ) C requires that the stairway have a handrail on each side. The subject stairway contained a handrail on only one side and there was no handrail mounted to the wall throughout the entire stairway. The existence of the boxedin section of wall to the left of the lower section of the stairway and does not properly function as a handrail. I note that even in the 1968 code C (f) requires stairways that are 44 inches to have handrails on both sides. Page 10 OTHER APPLICABLE BUILDING CODES AND STANDARDS: The following are the applicable NYC Building Code/Administrative Code provisions relied upon, referenced and discussed in this report. 1. Building Code of City of New York/Administrative Code, C , C , Replaced by C requires the owner to maintain the subject stairway in a safe condition. As set forth in this report, the stairway is not safe as it contains numerous dangerous conditions and defects. 2. American Society of Testing and Materials, ASTM F to ASTM F , ASTM F Section 4.6, 6.1.1, ASTM F Section 5.6,7.1.1, ASTM F Section 6.1.2, ASTM F Section International Code Council and American National Standards Institute, ICC/ANSI A 117. Section ICC/ANSI A Section ASTM F F Section & ASTM FF Section ICC/ANSI A117.1 Section IBC 2012 Section ADA Accessibility Guidelines, ADAAG 2002 Section International Building Code, IBC 2012 Section IBC 2012 Section and Section IBC 2012 Section IBC 2012 Section 1009 and of 16

11 13. Contemporary Practices in Stairway Design 2013 Section Contemporary Practices in Stairway Design 2013 Section Contemporary Practices in Stairway Design 2013 Section Journal of Safety Research, 26(3) The Staircase, Studies of Hazards, Falls and Safer Design, John Templer 1992 Page 11 CONCLUSION: In my opinion the subject stairway represented a dangerous and hazardous condition due to the fact that it lacked a 2 nd handrail, lacked dimensional uniformity, had non-compliant riser height, and contained numerous visual distractions, including excessively low headroom, monochromatic design, lack of an orientation edge and shadowy lighting from the ceiling soffit. The subject stairway was originally designed to accommodate a storage area within the cellar floor area. The cellar area use was subsequently converted to add offices and other uses. The subject stairway should have been upgraded to correct the dangerous conditions and defects created by the building owners and/or their predecessors and in any event have been preset for many years to meet the standards and requirements of a stairway serving such an area, however in fact it was not. It appears that at least 25 years prior to my inspection, tread covers were installed on the stair treads. The installation of a second handrail and the provision of proper headroom and correction of other defects created by the owners were never performed up to and including the date of inspection. The failure to do so is a dangerous departure from good and accepted safety practices in a commercial stairway. It is further recommended that these dangerous conditions and defects be corrected by the building owners. When viewing the surveillance video of Ms. BenShoshan s accident, I observed her right foot missing the leading edge of the landing, causing her to lose her balance and fall. Based upon my inspection, the inadequate headroom presents a significant hazard in that it requires visual focus to avoid hitting ones head when descending and provides visual distraction from the stairs and location of your feet. The visual distractions in all likelihood caused or contributed to Ms. BenShoshan to lose her footing. Combined with the lack of required handrails, monochromatic design of the stairway, lack of orientation edge and shadowy lighting 11 of 16

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13 QUALIFICATIONS: I have over 30 years of experience in the construction and building inspection industries. I have performed hundreds of building inspections on commercial buildings, condominiums, multi-family and single family homes. I have been qualified as an expert in numerous courts, including New York, New Jersey, Connecticut and Massachusetts. I hold an unrestricted (commercial & residential) construction supervisor s license in the state of Massachusetts and I am certified in commercial building inspections by CDW Engineering. I am also certified by the International Code Council in residential building codes, the National Floor Safety Institute as a Walkway Auditor Safety Specialist and the Building Envelope Science Institute as a Certified Building Envelope Inspector. Page 13 I am certified by the OSHA Institute of American for construction safety and hold an OSHA 10 certification and an OSHA 30 certification. I am a regular presenter of CLE courses related to OSHA regulations, commercial building inspections, slip & fall investigations and stairway safety. I have continuing education credits from the American Institute of Architects on various code related subjects and I have certifications in OSHA-specific topics such as scaffolding, steel erection, fall protection and electrical safety. I have also completed certifications under the International Association of Certified Home Inspectors in HVAC inspections, roof inspections and log home inspections. I continue to own and operate a construction company and a commercial building inspection service. PUBLICATIONS: On The Job, Smooth Tube Piers, Journal of Light Construction, August 2005 Property Condition Assessments Under ASTM Guideline , continuing education course presented online through T.A.S.A. Slip, Trip & Fall Investigations, continuing education course presented online through T.A.S.A. Stairway, Ramp & Single Step Accidents, continuing education course presented online through T.A.S.A. STATEMENT OF COMPENSATION: My compensation for time spent reviewing the above mentioned data, facts and information, forming my opinion and writing this report is $225 per hour. 13 of 16

14 Page 14 Photo 1: Overview of section of stairway where Ms. BenShoshan fell, note the lack of handrail on the left side of the stairway. Photo 2: Head room over tread surface directly below at approximately 64 ½, note that the head room measured from the leading edge of the stair treads measured 69 (not shown) 14 of 16

15 Page 15 Photo 3: Distance of boxed-in section of wall to the left of lower section of stairway, reducing its width by approximately 4 ¼ Photo 4: Vertical rise of step immediately before 2 nd landing (descending) measuring 8 ¼, max. allowed by code is 7 ¾ 15 of 16

16 Page 16 Photo 5: Stair tread covers placed on top of original tread surface 16 of 16