Tripping on the Sidewalk

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Q: In New York City, in an area of the sidewalk near a fire hydrant, my foot became caught.  I tripped and fell.  This area is a rectangular depression with an irregular asphalt surface, the size of a sidewalk flag.  In it, close to one edge, next to the curb, is this fire hydrant.  In the past, the City had repaired the hydrant, and refilled the excavation with blacktop, but the sidewalk was never really smooth after that.

A: In New York City, a statute shifts tort liability from the City to a commercial property owner for personal injuries proximately caused by the owner’s failure to maintain a sidewalk abutting its premises in a reasonably safe condition.  That statute seems to apply to the area at issue here, lying between the curb line and the property line and intended for the use of pedestrians.

At first glance, this defect in the sidewalk squarely falls within the definition of a substantial defect which is the property owner’s duty to repair.  However, the statute does not impose strict liability upon a property owner, and you have the obligation to prove the elements of negligence to demonstrate that the owner is liable.

Moreover, the owner will doubtless contend that, notwithstanding its duty to maintain the sidewalk in a reasonably safe condition, the statute does not shift tort liability where the sole proximate cause of the injury is a defect created by the City’s affirmative act of negligence.

From all this, it appears that both the owner and the City will remain as defendants, well past the summary judgment stage.

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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