Q: In winter, our town goes about plowing, sanding, and applying winter anti-icing liquids, depending on the situation with climate, traffic and ongoing storm.
One day, the snowfall had been not so heavy, and the snow was not so packed. My traction was not so bad. So I was surprised to see that the town had chosen sand, and so much of it – or gravel or cinders, whatever it was. On that sand, I skidded and lost control of my car.
A tow-truck driver responded to the accident scene. Both he and an engineer have agreed with me that the town applied way-too-much sand. But a clerk at the town told me that I am out of luck in suing, because the town lacks ‘prior written notice’ that the road was over-sanded. What is he talking about?
A: Nothing that he understands. Because the town created the dangerous condition through its own affirmative act of negligence, prior written notice is not required. We are not talking about a mere passive act of failing to clear away sand. The town affirmatively created a dangerous condition – so no prior written notice is required.
Apart from addressing the over-sanding issue, the town also will need to show that it had engaged in a deliberative decision-making process. Were the roadway design and construction the products of such a process? What about any decision to refrain from placing warning signs? If the town failed to engage in deliberation, then you have yet another arrow in your quiver.
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.
Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878