When falling on a “pothole” there is the central question of “where”? The answer will determine whether the client can recover.
The law is unfair and arbitrary. A matter of falling either a few inches here or there will make or break a client’s case.
For example, this photo shows a raised curb. The law provides, generally, that the adjoining premises owner is responsible for the condition of the sidewalk. However, the City is responsible of the curb’s condition. Let us assume that the client trips on the raised curb when going to the roadway. Who is responsible? Is it the adjoining premises owner for not making the sidewalk level with the curb? Or is it the City for a curb which is raised above the sidewalk? Or are both responsible?
A further complication is that the City will only be liable if the City received prior written notice of the defect through the Department of Transportation. If there were no notice, there is no case against the City regardless of the severity of the injury and the curb condition. However, prior written notice need not be proved against a private property owner.
In this photo the potholes are in the roadway. Again, there is no case against the City unless we can prove the receipt of prior written notice on the DOT. It is insufficient to prove that the condition existed for a long period of time. We must prove that the City had actual notice of this defect. Generally, this is an impossible task because potholes in the roadway are very rarely reported to the City.
In this photo the client tripped over the raised flagstones while going to her car. Although the adjoining property owner is responsible for the sidewalk, the City is responsible for the tree and the tree bed. Again, it is a chicken and egg game. Who is responsible? Is it the City because its tree’s roots pushed-up the sidewalk? Or is it the adjoining property owner for failing to level the sidewalk? Or is it both?
A further complication is the notice issue. Although actual notice need not be proved against the private property owner (who should have observed this condition over a long period of time), actual written notice (prior notice) must be proved against the City.
Therefore, a matter of inches can spell either victory or defeat for an injured person’s case.
If you have been injured in a trip and fall accident on a sidewalk or roadway, please feel free to contact me at 800-581-1434 or write to email@example.com for a free consultation.
Mark E. Seitelman, October 22, 2009, www.seitelman.com.