The City this Central New York personal injury lawyer calls home, Geneva, New York, recently amended its sidewalk law. Many local homeowners are concerned about the effect this might have on their “liability” for snow and ice on sidewalks. Before the amendment, the City Code had said, and continues to say, that homeowners (and business owns) “shall at all times keep the sidewalk (abutting their property) free from ice, snow, grass, weeds, rubbish and other obstructions; and shall at all times keep said sidewalk in a good state of repair . . .”. (Geneva City Code section 306-7). The Code further said, “If any person shall neglect or refuse to comply with the requirements of this section as to snow, ice or other obstructions, or sidewalks out of repairs, the Director of Public Works may cause all necessary work to be done at the expense of the person so in default” (id.) The amended law now states that, for snow and ice, the abutting property owner has only 24 hours from the cessation of snowfall to clean it up.
Bottom line, the City has upped the ante so that now, if you don’t remove the snow and ice within 24 hours, the City will do it and charge you for it.
The question for today’s blog post is, given the mandates of this City Code, can a passerby who slips on snow or ice or trips on a defect on the sidewalk abutting my property sue me for failing to remove snow or ice or otherwise failing to maintain the sidewalk abutting my property so that it is safe?
As even a novice Central New York injury lawyer would know, the answer is a resounding “no”. As usual, though, there is an exception to this rule. (And the novice lawyer might not know this). Before discussing the exception, let me explain the rule.
Even though the City has told me, through its Code, “hey, you’ve got to keep the sidewalk in front of your house safe, and that means plowing, salting, and fixing”, it doesn’t say “you will be liable for physical injuries caused by your failure to do so”. A few cities in New York State have passed laws that say exactly that, notably New York City (not as to homeowners, just commercial owners). But most have not. Unless and until the City does so, I’m off the hook for injuries caused by my sidewalk neglect.
Now for the exception: I can be held liable for injuries if I affirmatively do something to make the sidewalk MORE dangerous (rather than just allowing nature to take its course and cover it with snow, ice, or allowing time to fracture the sidewalk slabs). Example: I remove the snow on the sidewalk, but leave an underlying sheet of ice. Someone slips on it. They can sue me and claim I AFFIRMATIVELY caused the slippery condition. Another example: I repave my driveway where it crosses the sidewalk and leave an elevation differential between the sidewalk slab and my driveway pavement. Pedestrian trips on it. He can sue me.
If you are reading this blog post because you have recently been injured on a defective or slippery sidewalk, you might be asking yourself, “If I can’t sue the abutting property owner even though the City Code says he has a duty to maintain the sidewalk, who can I sue?”
The answer? The City. Yes, the OWNER of the sidewalk is the City. As a general rule, owners of property can be held liable for defects on their property that cause injury.
But not so fast! You’ve got some BIG hurdles to jump before you can hold the City of Geneva (or any other City, village, town in New York) liable for trip or slip-and-falls on sidewalks. That’s because several New York State statutes, including Civil Practice Law and Rules § 9804, New York Town Law § 65-a, General Municipal Law § 50-g, and Town Law § 65-a(2), provide that injured folks can’t sue a municipality for injuries unless “prior written notice of the defect, unsafe dangerous or obstructive condition” had been given to the municipality. This rule applies for defects on: (1) streets; (2) highways; (3) bridges; (4) culverts; (5) sidewalks; and (6) crosswalks. Cities, towns and villages can choose to enact these requirements into their local code or not. Most choose to do so.
In my nearly 30 years of experience as a Central New York injury attorney suing cities, towns and villages all over New York State, I can tell you the chances of you getting proof that the municipality had prior WRITTEN notice is about 1 in a million. Hardly anyone ever writes to the town or village or city clerk to say, “hey, your sidewalk has a crack in it”. If anything, they might make a phone call, but a phone call is not, according to the law, enough. It has to be in writing.
As said, the chances are 1 in a million. Ok, I’m exaggerating. If you really get lucky, someone else will have already filed a claim against the city for the same defect that injured you. That would be a “prior written notice”. But that works for defects like cracks or potholes. Now what do you think the chances are that someone wrote to the clerk about a slippery condition on the sidewalk after a big snowfall, the same snowfall that caused you to slip? Or that someone has already filed a claim for the injury she suffered just yesterday on the same snowfall that injured you? Your chances of finding prior written notice of a transient slippery condition are about 1 in a zillion.
The above paragraph is not true, however, at least regarding sidewalk defects such as potholes or cracked slabs, in New York City. There, a corporation set up by personal injury lawyers called “The Big Apple Pothole and Sidewalk Corporation” sends out emissaries all over the City to map out the City’s potholes and other defects. They then send copies of their maps to the City authorities, which counts as “prior written notice”. If you happened to have tripped on one of these mapped-out defects, you can win your case.
Not so in Geneva and other cities in New York. And not so anywhere when it was snow or ice that caused you to fall.
Careful out there this winter! It’s slippery and often you have no legal recourse if you are injured. But don’t give up until you have at least discussed your possible case with a Central New York personal injury lawyer such as yours truly!