A client suffered a very bad injury from tripping on a sidewalk defect in a village near Geneva, New York (I won’t name names!). Normally, trip-and-fall on sidewalk cases are nearly impossible to win because of a special law that protects villages (as well as cities, towns, etc.). That law — General Municipal Law section 50-e(4) — says that, under most circumstances, you can’t sue a village, town, city, etc., for injuries caused by defects in a “sidewalk, crosswalk, street, highway, bridge or culvert” as long as the village (or town, city, etc.), has enacted a “prior written notice” local law. Such a local law must in turn say, “hey, folks, you can’t sue us for injuries caused by defects on our sidewalks, crosswalks, streets, highways, bridges or culverts unless, before you were injured, we already had written notice of the defect.”
This is an extremely unfair law. No one, at least in upstate New York, ever writes to a village or town or city to tell them, “hey, you have a defect in your sidewalk at such-and-such a location and you’d better fix it before someone gets hurt”. If people complain at all about a defect or hazard they see, they are more likely just to call and complain. But that’s not enough under New York Law. It has to be in writing to be valid.
Getting back to my client, because she had a pretty serious injury, I wanted to make sure the village actually had a prior written notice law on the books. In my experience, 99% of villages, towns and cities in New York do, so I would have been very surprised if they did not.
Sure enough, they did. The village attorney sent me the village’s “prior written notice law”. But upon careful review of it, I noticed, to my surprise, that it required prior written notice only for defects in “culverts, bridges, streets and highways” AND NOT FOR SIDEWALKS.
The author of that village law clearly screwed up. Whoever that was, I would like to thank him or her for the gift. Now we do not need to show that the village had prior written notice of the sidewalk defect that injured my client. All we have to show is that the village negligently maintained the sidewalk, a far easier task.
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY premises liability Lawyers Michaels & Smolak, P.C.