How Can You Prove a Sidewalk Trip and Fall Claim?

How Can You Prove a Sidewalk Trip and Fall Claim? by Howard Lipset, CPAWhat seems to be a relatively basic legal claim – being compensated for a personal injury sustained when you trip and fall on a dangerous sidewalk condition – is actually a complex endeavor  for  the plaintiff.  You must prove the existence of a dangerous condition; that the responsible party had notice of; and that it caused the personal injury. Common injuries in these cases include a broken wrist, a fractured  humerus (upper arm); torn rotator cuff; broken ankle; herniated disc or torn knee cartilage.

On September 15, 2003, the New York City Administrative Code shifted the primary responsibility for sidewalk trip and fall accidents from the City of New York to the adjoining property owner. Under the new law property owners have the duty to maintain the abutting sidewalk in a reasonable safe condition and shall be liable for personal injuries resulting from any failure to do so. The new law does not apply to one, two or three family residential properties that are, in whole or in part, owner occupied and used exclusively for residential purposes. In those cases, the City of New York remains primarily responsible for the maintenance and care of the sidewalk.

Early and thorough investigation by the plaintiff’s attorney is mandatory.  The attorney should visit the accident location with the client to ascertain the precise cause of the fall. Photographs of the dangerous condition must be taken as close in time to the trip and fall as possible. An engineer should be retained as an expert at the inception of the case while the defect is still in the substantially same condition as the time of the trip and fall.

Often the defendant or the insurance carrier will claim the defective condition was diminimus, was not dangerous and could not have caused the fall. The best way to combat this defense is by use of the legislative definition of “defective condition.”  Under the New York City Administrative Code, a “substantial defect” includes, among other things, “a trip hazard, where the vertical grade differential between the flags of the sidewalk is greater than or equal to one half inch or where a sidewalk contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth.” N.Y.C. Administrative Code Section 19-152. The courts have also held, “even a trivial defect can sometimes have the characteristics of a trap.”

Proving notice against the City of New York requires, “prior written notice” of the actual defect that caused the fall, at least fifteen days prior to the date of accident. Establishing this notice is usually accomplished with the use of the Big Apple Pothole and Sidewalk Protection Corporation Map. Since the change of the law in 2003, most claims are against the private, adjoining property owner. Prior “written notice” is not required, however actual or constructive notice is still an element of the plaintiff’s claim.  Actual notice is usually in the sole possession of the defendant and may be difficult to establish. Constructive notice – establishing the property owner should have known of the existence of the defective condition – is something in the control of plaintiff’s counsel. If photographs of the condition are taken close in time to the accident and they depict a condition that could not have recently occurred, constructive notice will be established. Also, close questioning of the property owner at deposition can establish that he or she passed over that same defective condition on numerous occasions prior to the date of accident.

Proving a client’s claim for serious personal injuries arising out of a trip and fall accident is not something to be taken lightly. Immediate and diligent investigation must be performed. Expert witnesses should be retained early on in the case. Thorough questioning of adverse witnesses is a key to success.

Richard E. Noll
The Noll Law Firm, P.C.
(516) 307-1199
rnoll@lawnoll.com

 Howard Lipset, CPAHoward Lipset, CPA
Progressive Management, Inc.
(516) 883-2962
lipset@progressivemanage.com

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