I tripped and fell on the sidewalk. Who do I sue?
In the City of New York, you sue either the City, or the abutting landowner, depending on where you fell. The law governing sidewalk liability in New York City is Municipal Law 7-210. Before this law was passed, the City was responsible for all sidewalks. This law shifted the liability to property the abutting property owners except in instances where someone fell in front of a 1, 2, or 3 family building that is in whole or in part, owner occupied, and used exclusively for residential purposes.
So, if you fell in front of anything other than a 1, 2, or 3 family dwelling, you sue the property owner for the property that abuts, i.e., that is next to that sidewalk. This means that in most instances in New York City, the party to sue is the abutting property. This law applies to all commercial buildings, residential apartment buildings, strip malls, bodegas, shopping centers, gas stations, etc.
How can I tell if the building I fell in front of is a 1, 2, or 3 family dwelling?
An experienced New York City injury lawyer can figure this out based on tax records.
How can I tell if the owner lives there? How do I know if it’s used exclusively for residential purposes?
An experienced lawyer can figure this out throughout the course of the case. In close cases, an experienced lawyer will sue both the City and the landowner just in case. Once the lawyer figures out who the proper party is, the other party can be dismissed from the case.
I tripped on a broken sidewalk. Do I have to prove that the defendant knew about the dangerous and defective condition?
Yes. In any trip and fall injury case, you must prove notice. If your case is against the City, this is nearly impossible because with the City, you must prove prior written notice pursuant to Municipal Law 7-201. This means you must prove that someone wrote to the City and told them about the defect before you fell. This is a one in a million chance.
There used to be a company that made maps of all the defects on City sidewalks and sent the maps to the City Department of Transportation. The maps were last made in 2004 so are no longer very useful. If you fall on a defective sidewalk in front of a 1, 2, or 3 family owner occupied dwelling, you are most likely out of luck. An experienced New York City trip and fall lawyer can review your options with you, but it is nearly impossible to prove those cases.
For cases where the abutting property owner is on the hook, you only need prove “constructive” notice. This means you that you must show only that the owner should have known about the defect. There is no requirement that the notice be in writing. Throughout eyewitness testimony, and the opinion of an engineer, it can be proved that the broken sidewalk was there for a length of time so that a reasonable landowner would have seen it.
Are there any exceptions to the notice requirement?
Yes. “Special use” and “cause and create.”
If the owner of a 1, 2, or 3 family dwelling engages in a “special use” of the sidewalk, this could shift liability away from the City back towards the property owner. “Special use” could be something such as the creation of a driveway over the sidewalk. If this driveway creates a tripping hazard, the property owner could be on the hook.
“Cause and create” is very similar to “special use.” If the property owner took some action which actually caused the defect, this could shift liability back on to her. For instance, if the property owner decided herself to make repairs to the sidewalk, and left it in such a condition that caused a lip, raised sidewalk flag, or some other type of tripping hazard, that could shift liability back to the landowner.
What about the curb? I tripped on a broken curb. Who do I sue?
The courts have decided that the curb is the responsibility of the City. So, you must prove prior written notice. In other words, you probably have no case if you tripped on a broken or misleveled curb.
What about the street? What if I tripped while crossing the street?
The law is that you shouldn’t be J walking. You should cross in the crosswalk. For tripping hazards in the street, you have to sue the City, and you have to prove prior written notice. In other words, you’re probably out of luck.
If you tripped in a crosswalk, you’re in the same boat. You have to sue the City, and thus prove prior written notice of the condition.
Exceptions to this rule are if you tripped on something created by a private company such as Con Edison, or one of the many other entities that does work on the New York City sidewalks and roadways. You may have a case against one of these entities. It is extremely difficult, expensive and time consuming to get the records necessary to figure out who did work at a particular place on a New York City sidewalk or roadway. Only an experienced New York City trip and fall lawyer can help you determine if you have a case.