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.
There are exceptions to this “prior written notice” rule. The main exception is that, if the city AFFIRMATIVELY CREATED the defect, you don’t need to show “prior written notice”. For example, perhaps the city just finished working on the sidewalk and left broken sidewalk pieces, or a hole, that caused you to fall. In that case you don’t need “prior written notice” of the defect because the city “affirmatively created” the hazard.
Sidewalk laws in New York are complicated. If you slip or trip and fall on a city, town or village sidewalk in New York, only an experienced personal injury lawyer can tell you if you have a case. (By the way, the sidewalk law is totally different in New York City). If your lawyer knows what she is doing, she will first verify who owns the sidewalk (the city or the private abutting property owner). If the city owns it, she will check to make sure the city has enacted a “prior written notice” rule. If it has, then the lawyer will try to find an exception to the prior written notice law, such as the “affirmatively created” exception.
So the answer to the initial question posed in the title to this blog is . . . . . “maybe”!