(12PressRelease.com) First, the issue of pure common law negligence. The man who waved them into the construction site happened to be the foreman on the job that day. He allowed them to ride their bikes on that road despite knowing of the dangers. He clearly acted without reasonable care under the circumstances and was negligent under New York State law.
Second, we claimed that the City was liable in that it failed to maintain its roadway in a reasonably safe condition for all lawful users. Now under the "Pothole Law" which we discussed previously we needed to show prior written notice. This, in our estimation, we did.
Before we ever got to trial, we went through extensive litigation which in this case took almost five years. During that time, we had to continually go back to court on a regular basis seeking the supervising judge's intervention because not surprisingly the City did not want to cooperate with our extensive requests for documents that they were required to maintain in their various departments that did work at the location in question, namely the Department of Transportation (responsible for roadway maintenance), and the Department of Environmental Protection (responsible for broken water and sewer mains).
After many motions and threats, we received a wealth of documentation which indicated that there was a broken sewer main at that location four months before our accident, but the DEP never came to even look at it until the exact day of this accident. In the four month span, the DOT received numerous civilian complaints, repaired, patched or ignored this area of broken roadway but made note of it. Well, sort of.
The City records were very cryptic, especially when it came to giving the exact location of the defective condition. This is by design although they won't admit it even with the threat of electrodes and pliers. If they were specific about locations, this would aid plaintiffs in showing prior written notice of the problem by way of a computer generated record of 311 calls from concerned citizens, and then in making a work order or computer record, acknowledging the defect sufficiently to allow the plaintiffs to meet the requirements of the Pothole Law and win countless cases against them.
The third theory of liability that our plaintiff asserted was that through its employees' actions the City actually caused and created the condition that ultimately was reason for the accident by patching over a roadway ineffectively while the cause of the problem, the broken sewer line was left unattended.
After five years of litigation we were able to gather sufficient evidentiary material to arguably prove that the City had prior written notice and after much argument went to the jury on the three theories. But the proof required the jury to stretch on the plaintiff's behalf. We were able to make the argument that the purposely vague documents which said things like under the overpass (there were three) and ambiguous things like that, were in fact our location by process of elimination. Note: the one record from DEP was so specific they gave the location and measured feet from the curb. The DOT records simply left it wide open. The DOT supervisor testified they just drive around until they find what they believe is the defect and repairs it.
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