Types of Defects
Sidewalk accidents usually occur when someone trips and falls or slips and falls on snow and ice or a sidewalk defect. Click the link to learn more about slip and fall or trip and fall accidents. There are a multitude of ways to have a sidewalk accident. Some of the dangers that face the Bronx and Queens pedestrians, include:
- Metal sidewalk grating that can catch a heel and break an ankle.
- Loose brick walkways.
- Sidewalk cracks and broken up pavement.
- Snow and ice improperly removed; slip and hit your head and you may suffer a traumatic brain or head injury.
- The pits around trees or tree wells are uneven;
- Metal doors set into sidewalks may not lay flat and catch a foot; or they’re open and a distracted pedestrian can tumble down the stairs to a basement.
If you’re injured in a sidewalk accident, due to someone else’s fault, who pays? Several years ago, responsibility for keeping sidewalks safe fell completely on the City of New York. The City of New York made rules that required that actual written notice of the defect be given to the City before the accident. Otherwise, the City could not be held responsible and the injured person couldn’t sue the City of New York for his or her injury.
Big Apple Pothole Notice
In 1982 New York State’s trial lawyers got together and formed a
company named Big Apple Pothole & Sidewalk Protection, whose purpose
was to send out teams of people with maps. Every sidewalk in Bronx, Queens
and City-wide was examined and a code marked on the map to indicate the
defect. Maybe a squiggly line or a small circle and such. These maps were
gathered into large books and filed with the City, and the courts have
held that the maps constitute notice of a defect on a sidewalk if the
code matches the condition present. For example, if someone claims to
have fallen on a broken sidewalk, the map code should indicate a broken sidewalk.
The City of New York has long maintained that these “Big Apple maps” were difficult to decode because the marking were small and could be ambiguous. The maps were unjustly attacked as the work of greedy trial lawyers, not playing fair. In 2009 the Court of Appeals gave Big Apple maps close scrutiny so the maps may not work in many cases. This past December, 2009, New York State’s highest court gave the City of New York’s argument some credence, finding that the maps could be unclear and ambiguous.
In two separate cases the Court of Appeals let the City of New York off the hook because it found that the symbols drawn on the maps did not accurately describe the actual defects that caused the sidewalk accident victims’ injuries. Of course many lawsuits could have been avoided if the City used the maps to actually fix its sidewalks, which the City claims would be a waste of time because it says that most of the defects are so tiny as to not need repair or present an accident risk. “They’re penny-wise, pound-foolish,” said the chairman of Big Apple Pothole and Sidewalk. Now a short detour. This weakening of the usefulness of Big Apple maps comes at a time when they are less and less relied on by experienced personal injury attorneys. “Why,” you ask?
In 2003 the city changed the game anyway and it was changed in favor of the City of New York. Previously, the City owned the sidewalks and the owner of property next to the sidewalk owed no duty to maintain it. The worst that could happen was maybe a ticket for not shoveling snow or not repairing the sidewalk after the city gave a citation. But the property owner and/or property manager couldn’t be sued. There were small exceptions if the property owner went out and fiddled with the sidewalk and made it more dangerous, but those cases were few and far between.
On September 15, 2003, a new law went into effect in New York City shifting the duty for damage or injuries caused by sidewalk conditions from the City of New York to property owners. A change in New York City’s Administrative Code made this happen. Now, property owners – with the exception of owners of one-, two- and three-family homes – are liable for “the negligent failure to install, construct, reconstruct, repave, or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt and other material from the sidewalk.” And property owners also are required to have insurance. This law is expected to move $40 to $60 million in annual sidewalk claim payouts from the City of New York to New York City’s property owners and their private insurance carriers.
Now back to where we were before. Big Apple maps stopped being drawn in 2003, with the passage of the law letting the City off the hook in many cases. Nonetheless, the maps are still being used in many older lawsuits, and in cases where the owner of a small home does not get liability placed on his or her shoulders, so that the City is still on the hook for the condition of the sidewalk.
The City of New York Still Has a Nasty 90-day Deadline and Other Advantages
When suing the City of New York, accident victims must serve the City of
New York with a written Notice of Claim form, containing enough information
to allow the City to investigate the claim. This means that the City should
be able to take this piece of paper and find the defect. So if you fell
on a sidewalk, the Notice must contain measurements from fixed points
of reference. The City of New York has a second advantage, the time to
sue it is one year and ninety days after the accident. In cases against
non-municipal defendants, New York accident victims have three years to sue.
The claimant must still show that the City had notice of the defect and if that’s not enough, you may know that in any lawsuit you might bring for personal injury, each side gets to ask the other questions at a “deposition.” Well, the City of New York gets an extra deposition of the accident victim before the accident victim can even file a lawsuit. Authorized by Section 50-h of New York State’s General Municipal Law, this extra deposition (and the accident victim doesn’t get one of the City, only the City of New York can question the accident victim) is called a “50-h hearing.”
Open and Obvious Versus Trivial Defect
Sidewalk owners have two legal loopholes that they can use to try to avoid
liability and, interestingly, the two are opposites. According to New
York’s courts, a sidewalk defect is “open and obvious”
when it is “readily observable by those employing the reasonable
use of their senses and not inherently dangerous.”
This means that the injured sidewalk accident victim should have seen it. And the accident victim (and his or her attorney) might well answer back, “If I’d seen it, I wouldn’t have tripped on it.” In the best situations, this becomes a question for a jury to decide. Hopefully, the injured person has photographs, and whatever caused them to fall is not “open and obvious.” If this legal standard sees vague, kind of like nailing jello to the wall, you’re getting an accurate picture of the insanity that our legal system can present to the injured accident victim. So get yourself an experienced personal injury lawyer if you suffer a back injury in an accident.
Can you guess the opposite of open and obvious? It’s a “trivial defect.” Instead of a broken sidewalk or something else that causes you to trip and fall being so big and “there” that you should have seen and avoided the darn thing, a trivial defect is something so minor that a reasonable person (and you) should not have tripped or fallen over it. An exception to the trivial defect defense, is if the injured person can show that the sidewalk defect constituted a “trap, snare, or nuisance .” What do these mean? There is no standard definition, so, basically, the courts decide on a case-by-case basis, examining all the facts presented – including the width, depth, elevation, irregularity, and appearance of the defect, along with the time, place and circumstances of the injury. As you might have figured out, the outcome of sidewalk injury cases is at times unpredictable.
Obtaining a Proper Case on Your Behalf in Queens County
Unfortunately our case can be thrown out of court if a sidewalk defect is too big, or too little. It is wise if you seek out a qualified legal professional from my firm for the legal representation you need in these types of cases.
For your serious personal injury, you need legal representation from a qualified personal injury attorney.
Contact us for your free consultation.
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