You have bee involved in a car accident as a result of a defect in a roadway.
You are seriously injured and out of work for a lengthy period of time.
What can you do ? How can you make yourself and your family whole again
after your car spun out of control from a pot hole ? Today's blog
post discusses what municipalities must do to maintain property under
its control and what your rights are if you are injured in an accident
on public property in New York.
To hold a municipality liable for injuries you have suffered due to a dangerous
or defective condition on property owned by the public, first you must
show that there is a dangerous of defective condition. Second, you as
a plaintiff have to show that the municipality did not exercise reasonable
care by failing to repair the condition or defect or to take suitable
precautions to warn of the defective condition. Third, you as a plaintiff
must show that that the municipalities' failure to repair the defective
condition or warn of it was a substantial factor in causing the injury
to you. What does all of this mean ? What do attorneys look at to establish
these facts ? Well, there are many things that attorneys will inquire
about and use to prove these elements in a case against a municipality.
As always, one of the most important sources of information is our client.
You were involved in the accident and you may have knowledge of the property
that was involved in your accident. Maybe this is a roadway that you travel
daily in your commute to work. Maybe this is a park that you frequent
all the time with your children. These are just a few of the things that
we as attorneys will ask about when you consult us. Did you or anyone
else that lives in the area know about the pothole that you hit ? How
long has that pothole existed in the roadway ? Have any of your neighbors
complained about the condition to the town ? Has anyone else you know
in the neighborhood had a problem with the stretch of roadway that caused
your accident ? Has the municipality been notified of the defect ?
Regarding the issue of whether the municipality received notice of the
defect, many municipalities have local law or ordinance that requires
it receive written notice of a defective condition that is specific enough
to identify a defect before it can be held liable for personal injuries
caused by a defective condition. These notifications can be found through
FOIL requests through the clerk's office of village, town or city
that owns the property on which you were injured. FOIL request are just
letters to the town, village, city or county clerk asking for prior written
notice of a defective condition under the Freedom of Information Law.
What is a dangerous of defective condition ? A condition in real property
that is claimed to be defective must be shown to not be reasonably safe.
What does this mean ? Well, this question is usually left up to a jury
to determine. A pothole that is only 6 inches wide and an inch or two
deep may not be unsafe for a vehicle. This same pothole may be unsafe
for a pedestrian who walks over it and trips, falls and breaks his or
her ankle as a result of stepping into the pothole.
Next we have to look into whether the property owner used reasonable care
in maintaining the property where the accident occurred. Reasonable care
means a degree of care that a reasonably prudent property owner would
use under the same circumstances. There has to be an element of foreseeable
danger from a defective condition and a lack of taking care of the property
as a reasonably prudent property owner. In other words, you have to show
that the defect existed for a while, that it should have been noticed
or that it was noticed and ignored and that it was a defect that common
sense would dictate altering someone to fix it because it could cause
an accident if left alone. You can also have a defect that would not be
prudent to repair, but there was no warning of the dangerous condition.
An example of this could be hidden driveways, hills, bumps, no shoulders
on a roadway or a lack of guardrails.
Last, but certainly not least, you as a plaintiff must be able to show
that the defect was a substantial factor in causing your accident. If
we are talking about the trip and fall in a pothole, that situation is
obvious. If we are talking about a failure to warn of a dangerous condition,
this example is a little more difficult. Normally, this circumstance would
require expert testimony to show that the dangerous condition required
a warning and that an adequate warning would have assisted in preventing
In summary, villages, towns, cities and states are responsible for maintaining
the property under their control. If you have been involved in an accident
and you suffered injuries as a result of a defect or a dangerous condition
on public property, you should give us a call to discuss your case further.
We always offer free consultations and free case evaluations. We can and
will meet you during evening hours and on weekends if necessary. You should
always inquire about your case if you suspect you have been the victim
of someone's negligence and please remember that the attorneys at
Michael R. Varble & Associates, P.C. will fight for you !