Dratted Crack

Q: One day, I tripped on a part of the sidewalk that had become raised and cracked due to a system of tree roots growing underneath it. This was part of an extended section that was broken, depressed and uneven.  The town had made repairs there about ten weeks earlier.

A: One assumes that the town has enacted a prior-written-notice law, providing that the town may not be subjected to liability unless it has received prior written notice of the dangerous condition.  The only exceptions involve situations where the town receives a benefit from some ‘special use’ or has created the hazard through an affirmative act of negligence, one that immediately results in the existence of the dangerous condition.

Our courts have uniformly held that no other form of notice will suffice.  Neither notice through the town’s telephone hotline, nor a verbal complaint written down as a telephone message, is adequate.  The fact that the town may have inspected the sidewalk does not count.

Unless you can establish that those repairs caused subsequent immediate deterioration, there appears to be no proof of an affirmative act creating the hazard.  As for the special use exception, you have mentioned nothing to indicate that the town derives a special benefit from that sidewalk unrelated to the public use.

Fortunately, in many places, lawyers make it their business to go around in advance of accidents looking for cracks and potholes and then provide the requisite prior written notice, just in case an accident will occur.  Afterwards, as surely as sharks can swim, the lawyers will continue to have cases.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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