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Q: An hour after sunrise, I was jogging on a two-way street, facing oncoming traffic, looking straight ahead.  There were bunches of workers and machines in the area.  Whenever a car would approach, I would move to the left.  The last time this happened, I ended up in a depression at the side of the road.  After the car had passed, I was moving back toward the roadway.  Then I tripped and fell, over a raised edge of the depression, where it met the roadway.

It turns out that somebody had performed excavation work in the area, prior to installing gas lines beneath the road.  Now, the workers were in the process of restoring the area.  My friend came back and took photos.  They show that the depression had orange markings around it.  It measured about four-feet wide, eight-feet long, and at least one-inch deep.

A: Most likely, you will sue the gas company, the excavator and the unit of government that was responsible for this road.  The defendants were obliged to maintain the area in a reasonably safe condition.  Instead, this depression was a dangerous or defective condition – indeed, inherently dangerous.  The defendants may assert that the doctrine of ‘primary assumption of risk’ applies.  Your attorney will say ‘no way’, because your kind of accident is hardly a risk that is inherent in jogging.

The defendants may also assert that any defect was ‘trivial’ – that (a) a one-inch depression is physically insignificant and (b) nothing in the surrounding circumstances, such as an overgrowth of shrubbery, increased the risks it posed.

In determining whether a defect is trivial, the court must examine all of the facts presented – including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.  Your attorney will argue that this depression certainly was not trivial.  Moreover, your view and ability to pay attention were egregiously obscured and lessened by the crowd of the defendants’ own workers and machines, and the noise that they were making.

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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