Within the five boroughs (Manhattan, Brooklyn, Queens, Bronx and Staten Island) of the City of New York, there is probably a greater network of sidewalks and pathways than in any other county of the State of New York. As a result of all of these sidewalks and pathways surrounding the various building structures people have to travel to and from on a daily basis, there are a large number of trip, slip and/or fall accidents which occur on various sidewalks, walkways and pathways throughout the metropolitan area.
Many of these accidents result in serious injuries involving fractures of the wrist, arm, shoulder, ankle, knee and other bones including connective tissue damage which often requires surgery and protracted therapeutic treatment. Unfortunately, these types of falls can cause significant trauma to the head or brain (also known as traumatic brain injury [tbi]) which can result in death, especially when someone is propelled to the hard pavement directly hitting his or her head.
Many people are unaware of the very specific laws within the five boroughs of the City of New York which determine responsibility for maintaining the sidewalks. As this law is very specialized and requires complete and thorough knowledge concerning those persons and entities which may be responsible for maintenance of various sidewalks, walkways and pathways, it is important to contact a lawyer with all of the necessary knowledge and experience handling this type of case. The Law Offices of Ira M. Perlman and Robert D. Rosen have been prosecuting sidewalk accident cases for over 30 years, achieving outstanding settlements and verdicts on behalf of family members and loved ones who have needlessly suffered due to a failure on the part of the municipality or property owner to properly maintain sidewalks, walkways and pathways.
Common Sidewalk Conditions Causing Accidents
Obviously, there are numerous hazards occurring on the sidewalk that can cause an accident including but not limited to any type of uneven or unlevel surface, whether caused by faulty construction, a growing tree root, another structure embedded into the sidewalk or improper repair or patch work on the sidewalk. The following are dangerous property conditions commonly occurring on sidewalks:
- Snow which has been permitted to accumulate on the sidewalk
- Ice which has been permitted to accumulate on the sidewalk
- Uneven, misleveled and unequal surfaces
- Faulty construction resulting in an unsafe walking surface
- Faulty reconstruction or repaving of the sidewalk
- Accumulation of dirt or other material from the sidewalk which has not been removed
- Loose, worn, decayed and/or unstable sidewalk material
- Improperly placed sidewalk vaults and/or cellar doors creating a trip hazard
- Protruding pipes, metal structures and/or cables along the sidewalk
- Debris on the sidewalk; and,
- Other potential sidewalk hazards
Clearly, every accident is fact specific and requires a full and complete investigation concerning the cause of any sidewalk accident. Therefore, if you want to ensure that you or a loved one receives full and adequate compensation for any harm and loss sustained directly resulting from a sidewalk accident, call the Law Offices of Ira M. Perlman and Robert D. Rosen in order to achieve the outcome you and your family deserve.
Responsibility Under the Law
Property owners and municipalities (the City of New York is a municipality) are responsible for providing safe and adequately maintained sidewalks in order to avoid exposing people to the unreasonable risk of harm, such as a slip, trip and/or fall.
Sidewalks, pathways and walkways generally fall into two categories, as follows:
1.The first category relates to those sidewalks, pathways and walkways which are located directly on private property and are therefore the responsibility of the property owner: and
2. The second category relates to public sidewalks which are located between the public street and any property, such as any type of building, home or lot/land without any building structure on it.
In the first category, responsibility for a sidewalk, walkway and/or pathway located upon private property is the responsibility of a private property owner and/or possessor in control . In this regard, you can view our website content on Accidents / Injuries Occurring on Property which will give you a thorough understanding of the responsibility of the property owner and others in that type of case.
With respect to the second category, the City of New York changed the law effective September 14, 2003 in terms of the duty to maintain the public sidewalks throughout the five boroughs in the City of New York. More specifically, Section 7-210 of the New York City Administrative Code imposes a duty on any owner of property which abuts any public sidewalk including, but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition.
In other words, even though the City of New York as the municipality owns most of the public sidewalks throughout the five boroughs, this new law imposes responsibilities of maintenance upon the actual owners of adjoining apartment buildings, commercial buildings, homes, hospitals and other property owners for maintaining the public sidewalks in a reasonably safe condition. Obviously, this recent law is more favorable to the victims who have sustained injuries due to poorly maintained sidewalks because suing a private property owner who usually has liability insurance for protection may be quicker and simpler than proceeding with a lawsuit against the municipality which may take considerably more time and more resources in order to prove a case. Additionally, under the same law, property owners are also required to carry insurance to cover injuries sustained by victims of sidewalk accidents.
The enactment of this recent legislation was a victory for the mayor because the purpose of the law was to shield the municipality from liability for sidewalk accidents as a result of the City of New York having paid out massive amounts in settlements and judgments due to these type of accidents. Essentially, as a result of the law, the City of New York was eliminated as a potential defendant in many of the sidewalk slip, trip and fall cases due to the shift of responsibility to the adjoining property owners to maintain their abutting sidewalks “in a reasonably safe condition.”
It is extremely important to point out that under Section 7-210 of the Administrative Code, the adjoining property owner is liable for any injury to property or personal injury, including death, which is caused by the failure of such owner to maintain the sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition includes but is not limited to the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags (the actual surface we walk upon) and the negligent failure to remove snow, ice, dirt or other material from the sidewalk.
Exceptions to Section 7-210 of the Administrative Code
There are exceptions to Section 7-210 of the Administrative Code as follows:
- The law does not apply to one, two or three-family residential real property that is partially or wholly occupied by an owner of that property and is used exclusively for residential purposes. Therefore, if the owner of the property completely or partially occupies a one, two or three-family home and the property is used exclusively for residential purposes as opposed to commercial purposes, then the municipality (the City of New York) will remain responsible for the public sidewalk.
- Although Section 7-210 does not itself contain a definition of “sidewalk”, the courts have held that the sidewalk does not include the actual “curb” because a curb was not intended for use by a pedestrian to walk along. Therefore, the municipality will remain responsible for any dangerous, defective and hazardous conditions on a curb which result in an accident to a pedestrian.
- Section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells. Therefore, Section 7-210 does not make an abutting property owner responsible for maintaining trees or tree wells that are set into the sidewalk and owned by the City of New York. However, the mere fact that a tree root from a tree inside a tree well causes an uneven, misleveled or defective condition on the public sidewalk outside of the tree well will not relieve a property owner from responsibility where a pedestrian falls on the actual sidewalk outside of the tree well.
Other Considerations Affecting Liability for Sidewalk Accidents
A. The Doctrine of Special Use
Regardless of who owns the sidewalk, walkway and/or pathway, the Doctrine of Special Use or Special Benefit is reserved for situations where an adjoining property owner uses the sidewalk for his, her or its own special benefit, whereby that special use or benefit results in responsibility for that portion of the sidewalk put to special use. As an example, the owner of an iron trapdoor that is embedded in a sidewalk will assume responsibility for that area of the sidewalk due to the special use derived from the iron trapdoor. Another example of special use is the construction of a driveway over and across a sidewalk providing a special benefit for the owner of the driveway. The duty relates only to that portion of the sidewalk in which the special benefit use is installed. Therefore, the owner of an outdoor café may derive special use of a sidewalk as a result of placing tables and chairs on the sidewalk, and therefore, may be responsible for a defective condition within this particular area.
B. Proving Notice of the Dangerous Condition
Generally, the victim of a slip, trip and/or fall accident must prove that the property owner knew or should have known about the dangerous condition giving rise to the accident and that there was a failure to correct or remove the condition. However, if the property owner (or any of his, her or its employees) created the dangerous condition giving rise to the accident and injuries, then knowledge of the dangerous condition may be automatically imputed to the property owner thereby imposing liability. Therefore, if the owner of property knew or in the exercise of reasonable care should have discovered a dangerous condition on the sidewalk and had the reasonable opportunity to correct it, then said property owner will be responsible under the law if that hazardous condition was a substantial factor in bringing about the accident and injuries to a victim. Likewise, if a property owner goes out and attempts to repair a defective condition on a sidewalk and further creates a dangerous condition at the location or fails to correct the already existing hazardous condition, the property owner will be responsible for creating the actual defect as a result of engaging in faulty repair work.
In situations where the City of New York is still responsible to maintain the sidewalk and there is no private property owner involved, the victim must still comply with various requirements in order to prove his or her claim for a sidewalk accident. Initially, prior to even starting a lawsuit, there must be a document called a Notice of Claim filed within ninety (90) days of an accident in order to establish the right to bring a lawsuit against the City of New York. Failure to file this document on a timely basis will forever bar the victim from asserting any claim through a lawsuit (General Municipal Law Section 50-e). Additionally, in order to establish liability against the municipality, a trip and fall victim must establish that the City of New York had prior written notice of the specific sidewalk defect. Proving actual written notice pursuant to this section of the law (New York City Administrative Code 7-201) can be very difficult. Years ago, in order to comply with the proof requirements showing that the city had actual written notice of a specific hazardous condition on the sidewalk prior to the happening of an accident, the New York State Trial Lawyers’ Association formed a committee referred to as the “Big Apple Pothole Protective Committee”. This committee hired a mapping company in order to survey all of the sidewalks and crosswalks in the five boroughs for the purpose of mapping these defects and filing them with the City of New York through its Department of Transportation. This mapping and filing of documents with the City of New York provided the necessary prior written notice of the existence of many of the dangerous conditions on the public sidewalk. The purpose of this was to overcome what was almost an impossible burden placed on public citizens in order to prove a lawsuit against the City of New York due to unfortunate accidents on the sidewalks. These maps are still available to show very specific defects that have existed up to and including approximately 2004. The committee and mapping company stopped surveying these sidewalks when the new law, as discussed above, came into existence during the end of 2003 which imposed new responsibility on adjoining property owners as opposed to the City of New York as a municipality. In any event, there are still sidewalk cases that do involve the City of New York because of various exceptions and the maps still remain important. Additionally, these maps can be a useful tool in proving a case against a private landlord to prove notice when you can show a defective condition as far back as 2003 or 2004 and the condition has remained unrepairable up until the present time.
If there is no prior written notice to the City of New York for a sidewalk or crosswalk defective condition, there are two exceptions to the written notice law where liability may still be established. The first is where the City of New York made special use of the sidewalk that caused the defect and derived the benefit from that special use as described above. The second is where the city or one of the agencies thereunder, such as the Department of Environmental Protection or another department, affirmatively created the dangerous condition by an act of negligence. Therefore, if the city and/or its workers do some repair work on a sidewalk which immediately results in the existence of a dangerous condition, it can be held responsible notwithstanding a failure to show prior written notice as discussed above.
C. The “Trivial Defect” Defense
It is not uncommon for a defendant in a sidewalk accident lawsuit to defend the case by claiming that the defective condition or hazard in question is so minor or trivial, that it cannot be considered to be a danger or a hazard giving rise to any claim. In this regard, courts have held that whether a particular height difference between sidewalk slabs constitutes a dangerous or defective condition depends upon the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity and appearance of the defect, as well as the time, place and circumstances surrounding the accident and injury. Therefore, in determining whether a particular defect is minor or trivial, which would not permit a victim to sue, the court must consider all of the relevant facts and circumstances unique to that particular accident location and circumstances surrounding the happening of the trip, slip and/or fall by the victim. For instance, a victim may establish the existence of a hazardous condition giving rise to liability even where a height differential between two concrete slabs is minor, however, the accident occurred in a dimly lit area on a misty night rendering the alleged defect difficult to detect.
D. The “Open and Obvious” Defense
In contrast to the “trivial defect” defense mentioned above, property owners and municipalities sued for sidewalk accidents will also allege as a defense that competes with the “trivial defect” defense that the hazardous and/or defective condition which caused an accident and injuries was “open and obvious”. In other words, defendants will try to claim that the defective or dangerous condition complained of was so easily seen that it should have been avoided. Even though this defense is in complete contrast to the “trivial defect” defense, property owners and municipalities will often allege both defenses in the same lawsuit even though they compete against one another. The “open and obvious” defense does not necessarily act as a complete bar to recovery if proven by a named defendant in a sidewalk accident case unless a jury finds that the plaintiff victim was completely at fault, bearing one hundred (100%) percent responsibility for the happening of an accident as a result of failing to see what there was to be seen on the sidewalk, walkway and/or pathway. Otherwise, by proving that a hazardous or dangerous condition on the sidewalk was open and obvious may only serve to diminish or reduce the culpable conduct of a named defendant in a sidewalk accident case whereby a jury may find some comparative negligence on the plaintiff victim as opposed to one hundred (100%) percent responsibility on the named defendant.
E. Comparative Negligence
A victim of a sidewalk accident also has a responsibility to act reasonably when he or she is traversing over and along sidewalk, walkway and/or pathway property. If an unsafe condition along the sidewalk is so obvious that a person could reasonably be expected to observe it, then the property owner or municipality who is responsible for the particular sidewalk, walkway and/or pathway may not have a duty to warn others about the condition. If a reasonable person would have seen the condition and been able to avoid it, the victim may be found partially or entirely at fault for the happening of the accident. If the accident victim is partially at fault, the concept of “comparative negligence” may apply. The percentage of the accident victim’s fault would be compared to the percentage of the fault of the property owner or municipality who is a defendant and the amount of damages recoverable by the accident victim will be reduced proportionately. Therefore, as an example, if an accident victim is found to be thirty (30%) percent at fault and a defendant or multiple defendants are found to be seventy (70%) percent at fault, the accident victim will only be entitled to recover seventy (70%) percent of the total monetary award awarded by a jury from the defendant or defendants in a case.
What to Do After a Sidewalk Accident
- Seek immediate medical attention right away if you have been injured. In the case of severe injuries, 911 or some other emergency help should be summoned right away;
- If possible, prior to leaving the scene of the accident, take photographs with a cell phone or any other available camera to document and preserve evidence of the condition which caused you or someone else to fall. Time is of the essence in taking these photographs as it is important to document and preserve evidence right away. If you do not have a chance to do so, you can always return to the location or have someone return to the location on your behalf, whether it be a friend, colleague or any investigator retained by your attorney;
- If your slip, trip and/or fall occurred on a sidewalk, walkway and/or pathway located on private property, such as in a commercial development, residential complex or commercial complex, notify the management right then and there concerning the accident. Often, an accident or incident report will be filled out immediately which may contain useful information about the accident, including witnesses, information about causation and other information as well. A report of the accident will also be helpful in proving that the accident did in fact occur as opposed to any claim by the defense that there was no such accident at the location in question;
- Take down the names, addresses and phone numbers of all witnesses who saw the accident and/or witnessed the conditions giving rise to the accident; and,
- In the days, weeks or months following the accident, make sure that you do not speak with any of the potential defendants or their insurance carriers, investigators or any other representatives on their behalf without consulting an attorney first. Often, potential defendants, insurance carriers and/or their investigators have only one purpose in talking to you and that is to distort and manipulate the truth and the circumstances which actually occurred surrounding your accident. Although you may initially feel there is no harm in speaking to these individuals, these people may very well be trained to secure answers from you based on factually incorrect questions and assumptions which will result in you giving answers that do not truly reflect an accurate picture of what occurred and may damage your ability to prove the true circumstances surrounding your accident.
HOW WE CAN HELP YOU
Ira Perlman and Robert Rosen have over 30 years of experience in winning their clients full and complete monetary compensation for their harms and losses as well as the respect and dignity they so justly deserve. Mr. Perlman is a tenacious and seasoned trial attorney who has been successfully trying his clients’ cases as well as cases referred to the office from other attorneys for over 30 years. Mr. Rosen, with his adept litigation and writing skills has navigated clients’ lawsuits inside and outside the courthouse in order to achieve the excellent results that generate our ongoing success. The Law Offices of Ira M. Perlman and Robert D. Rosen are prepared to expend all of the necessary resources, financial or otherwise, in order to investigate and prosecute your case including retaining all necessary medical and/or technical experts in the relevant areas and fields and taking your case to verdict at trial if the insurance companies who represent the wrongdoers do not want to fully and fairly compensate you and your loved ones. If you, a family member or a loved one has become a victim due to an accident, malpractice or a serious injury and you would like to achieve optimum results on your claim, call the Law Offices of Ira M. Perlman and Robert D. Rosen at 212-689-5000 for help including a free initial consultation.