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Articles Posted in Municipal Liability

This Central New York accident lawyer is “on tour” again, traveling across New York State teaching other New York personal injury lawyers about New York “municipal liability law”. I addressed a very welcoming and attentive room of New York personal injury and medical malpractice lawyers in Manhattan this Friday, and will be hitting Albany, Syracuse, Rochester and Buffalo over the next 6 weeks.

What’s “municipal liability law“? It’s a maze of byzantine rules New York injury lawyers have to follow for suing New York State and its counties, cities, towns, villages, school districts and other governmental entities. The State and all these “subdivisions” of the State have special defenses they can raise to beat back accident and injury claims against them. I try to steer other lawyers around these blockades, and away from mistakes that might harm their injured clients’ cases

The rules are really quite complicated, and most years the courts “tweak” the rules at least a little bit in some of the cases they publish. And I read all the cases, hundreds of them, each year. I then try to distill from all this the most important changes in law, and convey that to my fellow personal injury lawyers.

The Syracuse Post-Standard reports that “Complete Streets Week: Making New York Walkable for All Generations”, begins today. What is it? It is a volunteer-led survey of pedestrian safety throughout Central New York, focusing on walking conditions in downtown Syracuse. Volunteers will look at the adequacy of traffic signals in allowing people with disabilities to cross, whether crosswalks are properly marked, the condition of sidewalks and the legibility of signs. The survey will serve as raw material for a “walkability” report to be published this fall on walking conditions all over Central New York, and in other areas of New York State. The report will bolster legislation pending in Albany called the “Complete Streets” law, which would direct transportation planners to design roads, sidewalks and streets with pedestrians in mind. Sponsors of the project include city and county governments as well as AARP, with volunteers doing most of the leg-work.

This study will, we hope, get our State and local governments to focus on preventing pedestrian accidents, injuries and lawsuits by fixing and preventing sidewalk and crossing defects and dangers. With an aging population, and with more of us disabled, “walkable” cities are crucial for the future of Central New York. Shamefully, New York State ranked third nationwide for elderly pedestrian deaths last year. But walkable cities are equally important for parents with small children, with strollers, and for everyone.

The lawyers at Michaels & Smolak, as Central New York pedestrian injury lawyers, know first-hand how dangerous the sidewalks, crosswalks and intersections can be in Central New York, including in Syracuse, Auburn, Skaneateles and Geneva where we live and work. Every year we file Central New York pedestrian injury lawsuits on behalf of those who trip and fall on cracked or broken sidewalks, or are hit by cars in poorly controlled intersections and dangerous cross walks. Sometimes they trip and fall on a broken, cracked, or heaved up sidewalk slabs. Sometimes they get hit by cars as they attempt to cross at dangerous crosswalks or traffic intersections. Very often they are old, or disabled, or are children. Therefore, we applaud “Complete Streets Week: Making New York Walkable for All Generations”, and all the volunteers who are making it a success!

The Geneva Finger Lakes Times ran a story yesterday about a car-on-pedestrian accident in Waterloo (Seneca County). The story was of interest to me because I pass through Waterloo twice a day on my way from my home in Geneva to my office in Auburn. Here’s what happened:

On January 11, a vehicle struck a 14-year-old student on Stark Street. For at least two years, the child’s mother had been one of several parents voicing (to put it mildly) concerns to local officials about the lack of sidewalks for school children who walk to and from school in that area. The parents say the Village of Waterloo and School officials merely shrugged their shoulders and pointed their finger at each other or at other entities. The Village of Waterloo owns the roadway in the area in question. Everyone, including the Village, appears to agree there is a safety concern with children walking to and from school in that area.

As I read the article, I asked myself, “who can be held accountable for this injury in court”? And “who can be held liable for future accidents if nothing is done”? I answered my own questions, and now it’s your turn. Readers, I give you two choices: Who can be held liable? (1) the Waterloo School Disctrict or (2) The Village of Waterloo?

This past fall this central New York accident lawyer toured upstate New York State, stopping in Albany, Syracuse, Rochester and Buffalo, to lecture other personal injury lawyers about Municipal Law Liability developments (see my prior blog about it) in New York State. One thing I told other personal injury lawyers about was a split in the appellate courts in New York on a municipal law legal issue. To understand the issue, you first have to understand the law in New York regarding emergency vehicle drivers, which include police officers, deputy sheriffs, State troopers, ambulance drivers and others. The law in New York is very protective of such emergency vehicle drivers. New York law wants such drivers to feel that they can perform their emergency driving without worrying too much about getting sued if they cause an auto accident. The relevant statute is New York Vehicle & Traffic Law 1104, which says you can’t sue such drivers if they cause an accident due to mere carelessness or negligence. Their driving has to be a lot worse than that. It says that you can only sue emergency responders for auto collisions when their driving demonstrates a “reckless disregard” for the safety of others.

Now let’s get into the issue that divided New York’s appellate courts. Assume that an emergency responder such as a police officer or ambulance driver collides with another automobile and the emergency driver is injured. Assume the emergency driver believes the accident was the other driver’s fault and sues him for pain and suffering compensation and other losses. Assume further that the other driver, in his defense, says, “hey, the accident was partly your fault too, and so you should only get partial recovery your loses”. That defense is known in the legal world as the “comparative negligence” defense.

The issue that divided the courts in New York was whether, when such a defense is raised, the sued driver has to prove that the emergency responder was merely “negligent” or whether he has to prove that the emergency operator acted with “reckless disregard” for the safety of others. New York’s Third Judicial Department in Ayers v. O’Brien had held that such a driver had to show only “negligence” while the Second and Fourth Judicial Departments had ruled that he had to show that the emergency vehicle operator was “reckless”. This week New York’s highest Court, the Court of Appeals, agreed with the Third Department that only negligence must be shown.

This central New York personal injury lawyer was born and raised in Syracuse, New York. My law offices are in Auburn, Cayuga County. I reside in Geneva, Ontario County. I am therefore fully rooted in central New York and the Finger Lakes region. But I like to travel. In fact, as a young man, I spent seven years living abroad. I speak several languages, including French and Spanish. My travels have taught me many things. One lesson I learned is that United States’ personal injury law is the best in the world. Let me explain by telling a story.

One evening, while visiting my in-laws in Guatemala City, Guatemala, I was walking down a dimly lit side street to get to my in-laws’ house. I came inches from stepping into a barely visible 3-foot wide, and who-knows-how deep, hole in the middle of the street. Municipal workers had created the hole and left it uncovered and un-barricaded. If I had taken one more step, I would have fallen into this hole and been seriously injured.

Why did the municipal employees leave the hole they were working on uncovered with no warnings or barricades? Because it did not matter to them. In Guatemala, a citizen can’t sue the City for personal injury, pain and suffering, lost wages and medical expenses for municipal workers’ negligence like we can in the United States. Since there was no price to pay, what incentive did those workers have to be careful? Answer: none.

First scenario: You are walking on a sidewalk in Auburn, Cayuga County, New York and trip and fall on a raised portion (a “differential”) of the sidewalk that had been poorly maintained. You are injured. Second scenario: Same thing happens in Penn Yan, Yates County, New York. Question: Can you sue anyone to recover compensation for your injuries? Your central New York slip-and-fall lawyer’s answer: You probably can if you are injured on a sidewalk in Penn Yan, but not in Auburn, New York. Make any sense? Of course not.

Welcome to the complicated world of New York sidewalk laws. To understand why the result is different in Penn Yan and Auburn, you first have to understand that there are two possible owners of city sidewalks: The city or the abutting landowner. In Penn Yan, the sidewalks are owned by the abutting property owners. You can sue the property owner if you trip and fall on his or her poorly maintained sidewalk.

But in Auburn, the abutting property owner does not own the sidewalk. The City of Auburn does. If you have the same accident on a city-owned sidewalk, for example in Auburn, your case is much tougher. New York State sidewalk laws protect the city from liability for trip and falls or slip and falls on its sidewalks if the city has enacted a “prior written notice” law. If the city has such a law on the books (which Auburn does), then generally you cannot sue the city unless, before you tripped or slipped on that defect in the sidewalk, someone else had written a letter to the city complaining about the same defect. But this almost never happens! Although people might call the city to complain, they rarely write letters complaining about a raised sidewalk or a pothole.

I just completed my fourth annual round-the-State lecture to other injury lawyers regarding Municipal Liability for the New York State Academy of Trial Lawyers. You can see the outline for my talk at the “publications” page on our Michaels & Smolak, P.C. website. “Municipal Liability” means holding a government entity, such as a county, town, village, city, school district or public authority, liable for injuries. I lectured to Albany personal injury lawyers, Syracuse personal injury lawyers, Rochester personal injury lawyers, and Buffalo personal injury lawyers.

This is a hard topic. Bringing a claim against a governmental entity in New York State is like walking down a labyrinth strewn with hidden mines that can explode under foot. You need to know where to turn in the maze, and which steps to avoid. There are bizarre, complex special procedures you have to navigate through, and some very powerful defenses you have to watch out for.

As for procedures, before you even sue a municipality, you generally have to serve something called a “notice of claim“, a legal document giving the municipality certain key information about the claim you intend to bring. This has to be served on the municipality in a very specific way within 90 days of the injury you want to sue for. Also, your statute of limitations is usually much shorter than when you just sue a private person. There are many other procedural differences too, including something called a “50-h examination”, which is a chance for the municipality’s lawyer to ask you questions under oath about your claim. To read a more complete detailed account of these procedural hurdles, read my Municipal Liability article “Suits Against Public Entities“, which was published in the New York State Bar Journal several years ago, but is now conveniently located on our firm website at the “publications” page.

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