Dansker & Aspromonte Current Commentary

TRAGIC ELEVATOR ACCIDENT EVEN MORE TRAGIC BECAUSE IT SHOULD HAVE BEEN AVOIDED

Like every New Yorker, I feel horrified and saddened to see that a young woman, Suzanne Hart, working for Young and Rubicam in Midtown, was killed on December 14th in a ghastly elevator accident when she was crushed between floors as she attempted to enter her office building elevator like we all do multiple times a day.

As a personal injury attorney who has worked on numerous elevator malfunction cases, I know it is even more tragic because this nightmare could have and should have been avoided.

All elevators are equipped with devices known as safety interlock switches, which when working properly would turn the elevator off rather than allow it to move with the doors open.

Clearly, these switches were not operational or malfunctioned at the time of this woman’s unfortunate death.

The causes, like in many accident cases, are probably multiple. Certainly, a likely cause is failure to maintain and repair the old, worn-out switches in this older building.

Another likely cause is that given the budget cuts and overburdened city elevator inspectors, the required inspections that take place on a yearly basis were done in a less than complete and thorough manner, overlooking many potential problems because of a lack of time, interest and supervision.

The elevator maintenance companies only do what is obvious and the owners of the buildings rarely will incur additional expenses to replace any parts until they are absolutely necessary.

Well it was necessary, but it didn’t happen.

We all mourn the loss of one of our own. It is one loss too many in a situation that should never have happened.

Paul Dansker
Senior Partner
Dansker & Aspromonte

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Municipal Liability for Sidewalks and Roadways An Update by Paul Dansker, Esq.

In the summer of 2010 we were involved in a trial against the City of New York that was hard fought over many liability issues that have become a virtual battleground in recent years. The City has continually tried to hide behind a wall of unfair laws and restrictive judicial decisions which have slowly whittled away an injured person’s right to sue a municipality for negligence.

Prior to 1980, it is true that the City of New York, like other cities throughout New York State, were essentially sitting ducks for the likes of any pedestrian who claimed to be injured as a result of tripping on a broken sidewalk. (Although this writer practices law exclusively in New York City, I assume that the situation is similar in other states.) Even in the case where there were no witnesses, the City had essentially no defense to a suit for personal injuries because as the owner of the sidewalk, it had a non-delegable duty to maintain it in a reasonably safe condition for all users.

Then in 1980, the City and other municipalities all over New York State, enacted what is fondly known as “the Pothole Law”. The Pothole Law essentially says that a person who is claiming to be injured by virtue of a trip on a City sidewalk (or roadway, or park, or wharf, etc.) cannot sue the City unless the City received prior written notice at least 15 days before the accident and the City then failed to make adequate repairs. This is what is called a ‘condition precedent’ under the law. And, the City succeeded with their sidewalk Catch-22, in substantially reducing their exposure to liability as one would imagine because most of the cracks in the many miles of City sidewalks exist for years without any notice to the City whatsoever, written or otherwise.

But there are several ways to get around this dilemma for injured claimants who cannot prove prior written notice. The first is the City’s own prior written acknowledgment of the defect in its reports or other documents or a showing that the City, by its own acts, caused or created the defect which is the subject of the lawsuit, or that there was a special use of the area in question which took it outside of the normal sidewalk or roadway.

As the years have passed, the appellate courts have continually narrowed the definitions of what exactly constitutes prior written notice, written acknowledgment, and cause and create, to limit and restrict the City’s liability. The pendulum has swung and in the opinion of this writer, swung too far toward a day when pedestrians, bicyclists and motorists will not have any rights whatsoever even in the face of egregious and gross negligence on the part of the municipal workers. We need to strike a fair balance so that the rights of both sides should be considered and protected.

The facts of our case are disturbing: A 43-year-old woman rode her bike with her boyfriend from the Upper West Side down Central Park West intending to go across the park to get to the east side. This was around 7:30 am on the day before the New York City Marathon in November of 2005. As they arrived at the entrance to the 65th Street transverse (one of the roads that cut across the park) they saw a City worker putting up barricades to close off the very road they had wanted to cross on. They asked the man if it was still okay if they go through on the road he was closing. He said “Sure, go ahead.”

What he didn’t tell them was that he was closing the road because the roadway under the second overpass about a half a mile east was completely broken up due to a broken sewer main and that there was a crew of 5 men and three trucks waiting to start an excavation and repair at that location.

Without any warnings, signs, cones, flagmen or barricades the woman rode her bike into the pitch black underneath the overpass. Her bike went straight into a pit throwing her forward, smashing her face on the edge of the excavation. She tore her mouth severely, fractured her skull, jaw, nose, and septum, broke numerous teeth, shoved the remainder of her teeth back into her mouth, damaged her tear duct so badly that it required a tube be surgically inserted into her duct and worn continuously for six months, and she sustained permanent vertigo. She underwent 19 plastic surgeries and is left with very obvious cosmetically disfiguring scarring around her mouth and nose that is readily apparent and that cannot be improved with any more plastic surgery.

The claims of liability against the City were threefold.

First, the issue of pure common law negligence. The man who waved them into the construction site happened to be the foreman on the job that day. He allowed them to ride their bikes on that road despite knowing of the dangers. He clearly acted without reasonable care under the circumstances and was negligent under New York State law. Due to what is known as vicarious liability, the City would be liable for acts of its worker who was in the course of his employment at the time.

Second, we claimed that the City was liable in that it failed to maintain its roadway in a reasonably safe condition for all lawful users. Now under the “Pothole Law” which we discussed previously we needed to show prior written notice. This, in our estimation, we did.

Before we ever got to trial, we went through extensive litigation which in this case took almost five years. During that time, we had to continually go back to court on a regular basis seeking the supervising judge’s intervention because not surprisingly the City did not want to cooperate with our extensive requests for documents that they were required to maintain in their various departments that did work at the location in question, namely the Department of Transportation (responsible for roadway maintenance), and the Department of Environmental Protection (responsible for broken water and sewer mains).

After many motions and threats, we received a wealth of documentation which indicated that there was a broken sewer main at that location four months before our accident, but the DEP never came to even look at it until the exact day of this accident. In the four month span, the DOT received numerous civilian complaints, repaired, patched or ignored this area of broken roadway but made note of it. Well, sort of.

The City records were very cryptic, especially when it came to giving the exact location of the defective condition. This is by design although they won’t admit it even with the threat of electrodes and pliers. If they were specific about locations, this would aid plaintiffs in showing prior written notice of the problem by way of a computer generated record of 311 calls from concerned citizens, and then in making a work order or computer record, acknowledging the defect sufficiently to allow the plaintiffs to meet the requirements of the Pothole Law and win countless cases against them.

The third theory of liability that our plaintiff asserted was that through its employees’ actions the City actually caused and created the condition that ultimately was reason for the accident by patching over a roadway ineffectively while the cause of the problem, the broken sewer line was left unattended.

After five years of litigation we were able to gather sufficient evidentiary material to arguably prove that the City had prior written notice and after much argument went to the jury on the three theories. But the proof required the jury to stretch on the plaintiff’s behalf. We were able to make the argument that the purposely vague documents which said things like under the overpass (there were three) and ambiguous things like that, were in fact our location by process of elimination. Note: the one record from DEP was so specific they gave the location and measured feet from the curb. The DOT records simply left it wide open. The DOT supervisor testified they just drive around until they find what they believe is the defect and repair it.

We produced expert testimony by way of a highway engineer who had previously worked for the City who explained the way they operate or don’t operate as the case may be. He testified that the City by patching the roadway and not repairing the underlying sewer main actually made the condition more dangerous, our second theory of cause and create.

Despite our proof, the jurors were not willing to find for the plaintiff on two of the three theories. They found that we had not proved the City had prior written notice, nor did they believe that they had caused or created the defective condition. They did find that the supervisor was negligent in his waving the plaintiff through on her bike without warning her and therefore we won our case on that theory alone.

You would think that the case would end there, but it didn’t.

The City is presently appealing the jury’s finding, claiming that legally, the municipality is protected by governmental immunity under these circumstances and is therefore not liable for its employees’ acts. The argument is convoluted and complicated but it boils down to the claim that traffic regulation has been traditionally viewed as a governmental function and in most cases, decisions about traffic regulation are not actionable.

We have countered and we believe that what happened in this case is pure construction site negligence, not protected by any governmental immunity, and just because the supervisor of DOT was closing the street so that his crew could repair the roadway, it does not mean that he was directing traffic.

That’s where the case stands at present. We will keep you informed of developments. However, I think the above discussion is interesting in showing just how far the City has gone to avoid liability and if left unchecked how far it could go in the future. Stay tuned.

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