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New Decision In New York Defective Sidewalk Cases

March 20, 2013
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Our New York City and White Plains personal injury lawyers have represented countless people who were injured in a trip and fall accident on a broken sidewalk, defective sidewalk or a pot hole in the street. Often people are initially discouraged from bringing a claim because they are told they cannot sue unless the City or Town had a prior written notice that the sidewalk or street was broken. This is only partially true since there are exceptions to the prior written notice laws, including the cause and create doctrine.

Former Mayor Ed Koch, now deceased, first came up with the concept of a prior written notice law when he was Mayor of New York City. In essence, since the City of New York rarely fixed the broken streets and sidewalks in the Bronx, Queens and Manhattan, they were routinely held liable for defective sidewalks and streets. So Mayor Koch said, tell us where the defects are and if we don’t fix it, then the City will be liable. This began the concept of prior written notice laws. When Cities, Villages and Towns pass a prior written notice law, it cannot be liable for personal injuries caused from a slip and fall or trip and fall accident which was caused by a negligently maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies. Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it. When one of these exceptions applies, there is no requirement to prove that the municipality had prior written notice of the defective condition.

One of the most used exceptions is the cause and create doctrine. Basically, the City can be held liable for negligent maintenance if they fail to fix the sidewalk after being notified in writing of the defect, however, this notice does not apply where the City created a defect through negligent construction or design of the sidewalk. Our New York accident lawyers routinely hire engineers and architects to determine if a defect was caused by unworkmanlike construction.

Often the Cities will move to dismiss these cases by stating they had no prior written notice. In a recent decision from the New York Second Department Appellate Court, the Court clarified the municipality’s burden of proof in a case involving Scarsdale’s prior written notice law. The Court held that where the injured person’s complaint alleged that the City or Town affirmatively created the dangerous condition that caused the accident through negligence in the design and construction of the sidewalk, merely claiming a lack of prior written notice of the defective condition is not enough. Rather the municipality is required to establish that it did not affirmatively created the alleged dangerous condition through negligent design and construction and where they fail to do so, the case cannot be dismissed. Our White Plains personal injury lawyers have handled numerous trip and fall accident cases and our consultations are always free.

 
The Law Offices of Michael H. Joseph