Sidewalk Trip and Falls – Who can I sue?
If I slip or trip and fall on the sidewalk, who can I sue? This is a question I’ve been asked hundreds of times since I became a lawyer in 2007. The answer is…it depends. Assuming we’re talking about a slip and fall in the five boroughs (counties) encompassing the City of New York, there are many different scenarios where one could sue many different entities. If you are injured in a slip and fall or trip and fall accident, your best bet is contact an experienced attorney who can guide you through the myriad state laws, administrative code sections and exceptions to the rules that may apply. Here are some things to consider.
Before September of 2003, the City was responsible for sidewalk maintenance. In September of 2003, a law was passed, New York City Administrative Code 7-210, which shifted the liability for sidewalk maintenance f
rom the City to the abutting landowners except in cases of one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes. The general rule is essentially that commercial property owners are now responsible for maintaining the sidewalk outside of their buildings, but private homeowners (“the little guys”) are not, thus leaving the city responsible. (An owner of a 1, 2, or 3 family dwelling can create liability for him or herself by making a “special use” of the sidewalk for example by using it as a driveway or negligently repairing a defect.)
What about notice?
In any trip and fall or slip and fall case, the defendant must have been put on notice of the condition for a sufficient period of time in order to remedy the defect. For cases against the City, plaintiffs generally rely on something called the Big Apple Map. After a law was passed that stated that the City must receive “Prior written notice” of a defect, the New York State Trial Lawyers Association realized that all trip and fall victims would have no case unless something was done. Some extremely clever lawyers came up with the idea of hiring people to walk throughout the city and document all of the sidewalk defects on maps, and send these maps to the City Department of Transportation. This was ruled to be sufficient notice. If you have a trip and fall in a place where the City is responsible, you are most likely out of luck unless you can find a big apple map that shows a reported defect at the area where you fell.
If you fall in front of a commercial building, however, there is no requirement of “prior written notice.” A plaintiff can successfully make out a case against a commercial property owner if he or she can prove that the property owner had “constructive notice.” This is a legal fiction which really means “legal notice.” The law states that the defendant must have either known, or in the use of reasonable care, should have known that the defective condition existed. If a plaintiff passes this hurdle, he or she must then prove to a jury that the defendant property owner had enough time to correct the defect and did not. These allegations are not easy to prove, and there is clearly much subjectivity that goes into words such as “reasonable.”
What if I slip and fall on an icy sidewalk?
Essentially the same rules apply, but slip and falls are different, and harder to win, because of the transient nature of the condition. In order for a claim like this to be viable, the weather records have to match up perfectly with the plaintiff’s version of the events. In other words, there has to be a storm, temperatures must dip below freezing causing ice, then there has to be a reasonable amount of time for the defendant to remedy the defect before the accident occurs.
It is also extremely difficult to win a slip and fall case if the accident occurred while a storm was in progress. Generally a defendant is not responsible for clearing a sidewalk while a storm is in progress. The courts have carved out an exception for this – if the plaintiff fell not on the falling snow, but on ice from a previous storm.
The bottom line is that sidewalk accident cases are complex and should be handled by an experienced attorney. If you have been injured in a trip and fall or slip and fall accident, please call me today. 212-363-HURT.