(12PressRelease.com) In the summer of 2010 we were involved in a trial against the City of New York that was hard fought over many liability issues that have become a virtual battleground in recent years.
The City has continually tried to hide behind a wall of unfair laws and restrictive judicial decisions which have slowly whittled away an injured person's right to sue a municipality for negligence.
Prior to 1980, it is true that the City of New York, like other cities throughout New York State, were essentially sitting ducks for the likes of any pedestrian who claimed to be injured as a result of tripping on a broken sidewalk. (Although this writer practices law exclusively in New York City, I assume that the situation is similar in other states.) Even in the case where there were no witnesses, the City had essentially no defense to a suit for personal injuries because as the owner of the sidewalk, it had a non-delegable duty to maintain it in a reasonably safe condition for all users.
Then in 1980, the City and other municipalities all over New York State, enacted what is fondly known as "the Pothole Law". The Pothole Law essentially says that a person who is claiming to be injured by virtue of a trip on a City sidewalk (or roadway, or park, or wharf, etc.) cannot sue the City unless the City received prior written notice at least 15 days before the accident and the City then failed to make adequate repairs. This is what is called a 'condition precedent' under the law. And, the City succeeded with their sidewalk Catch-22, in substantially reducing their exposure to liability as one would imagine because most of the cracks in the many miles of City sidewalks exist for years without any notice to the City whatsoever, written or otherwise.
But there are several ways to get around this dilemma for injured claimants who cannot prove prior written notice. The first is the City's own prior written acknowledgment of the defect in its reports or other documents or a showing that the City, by its own acts, caused or created the defect which is the subject of the lawsuit, or that there was a special use of the area in question which took it outside of the normal sidewalk or roadway.
As the years have passed, the appellate courts have continually narrowed the definitions of what exactly constitutes prior written notice, written acknowledgment, and cause and create, to limit and restrict the City's liability. The pendulum has swung and in the opinion of this writer, swung too far toward a day when pedestrians, bicyclists and motorists will not have any rights whatsoever even in the face of egregious and gross negligence on the part of the municipal workers. We need to strike a fair balance so that the rights of both sides should be considered and protected.
For more details please visit:
www.dandalaw.com