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
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
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
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.