Tripping in a Tree Well

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Q: One day in New York City, my right foot got caught in a raised brick.  The brick was part of a curbside tree well.  I lost my balance and fell.

A: Under section 7-210 of the NYC Administrative Code, the owner of real property abutting any sidewalk is obliged to maintain the sidewalk in a reasonably safe condition.  However, for the purposes of section 7-210, a tree well is not considered part of the sidewalk.  Thus, section 7-210 does not impose liability on the adjacent property owner.

Occasionally, the adjacent property owner owns the tree well or otherwise has assumed a duty to maintain it.  Perhaps there is evidence of such a duty.  Then, principles of negligence can impose liability.

In other words, so long as the tree well was the proximate cause of your fall, and no condition concerning the sidewalk was a possible factor in the happening of this accident, the adjacent property owner is not liable.  However, perhaps you were in the tree well because there was a hazard on the sidewalk that you were trying to avoid.  In that case, the adjacent property owner might indeed be liable.

As for the City, it has adopted a ‘prior written notice law’ and so cannot be held liable for a defect within the scope of the law absent prior written notice, unless an exception applies.  Under this law, a civil action generally may not be maintained unless written notice of the defect previously was given to the commissioner of transportation or some other authorized person or department.

There are two exceptions: (1) where the City created the defect or hazard through an affirmative act of negligence; and (2) where a special use confers a special benefit upon the City.  The first exception is limited to work by the City that immediately results in the existence of a dangerous condition.  Perhaps you will have the good fortune that these exceptions apply.

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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