Wade Clark Mulcahy LLP

<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Beagle-v.-City-of-Buffalo.pdf">Beagle v. City of Buffalo</a></em>, a plaintiff had a trip and fall on a sidewalk where the City of Buffalo had performed a cold patch (asphalt patch to fill in cracks in concrete) during winter on a gap between two sidewalk slabs. The two slabs were elevated by roots of a nearby tree (insert J.R.R. Tolkien reference here) owned by the City of Buffalo. Before the accident occurred, the City performed cold patch repair covering the open section caused by the root. However, the sidewalk slabs in controversy were still elevated, and the plaintiff tripped on them. It is settled law in New York that a municipality may require prior written notice of any defect on a sidewalk a condition precedent to any tort actions against it. The Defendant City of Buffalo moved for summary judgment contending it had no prior notice of the dangerous defect pursuant to Buffalo City Charter §21-2.</p>
<p style="text-align: justify;">However, the New York Court of Appeals has recognized two exceptions to the prior notice rule. The first exception is where a special use of the sidewalk confers a special benefit upon the defendant, and the second exception is where the city has created the defect or hazard through an affirmative act of negligence that immediately results in the existence of a dangerous or defective condition, and not a condition that develops over time. Here, although the plaintiff did not plead the prior written notice in her Amended Complaint, the Court felt that the City of Buffalo failed to prove as a matter of law that the cold patch repair performed on the sidewalk created a dangerous condition that developed over time.</p>
<p style="text-align: justify;">The circumstances surrounding the accident in Beagle are reminiscent of hundreds of sidewalk claims against premises owners, tenant/leasor and municipalities each year. Quite often, municipalities move for summary judgment and win based on the argument that they had no prior written notice pursuant to local statutes. Afterwards, the premises owner and tenant/leasor are left in the case because they may have had constructive notice of the dangerous defect. This case provides a clear legal analysis that can be used to show that the local municipality cannot be dismissed from a case simply because they had no prior written notice. Rather, in circumstances such as these, the local municipality must show they did not create the hazard or that the claimant was not immediately injured by the hazard they created.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.</p>