New York’s Administrative City Code 7-201 holds that officials must be given at least 15 days advance written notice to act to correct a potentially dangerous condition.
It was on this basis that the city appealed the ruling against it in Wittorf v. City of New York after a bicyclist was injured after riding into a pothole.
Our New York City bicycle accident lawyers understand she and a friend were given the Ok by a city transportation worker to pass through an area that was closed off for construction work to repair depressions in the concrete. Because of the darkness, she didn’t see the depression until she was right up on it. When she swerved to avoid it, she fell into another and was seriously hurt.
She sued. A jury apportioned the plaintiff 40 percent fault and the city 60 percent fault, as the city transportation worker had permitted her to enter a dangerous closed roadway.
The city appealed to the supreme court on the grounds that it should be immune from liability based on sovereign immunity and because of Code 7-201. The appellate division agreed. However, the Court of Appeals reversed.
The key determination was whether the worker was engaged in a government function or a proprietary function. The defendant argues the former, the plaintiff argues the latter. Generally, the distinction is that the government is subject to ordinary tort liability if it negligently provides services that are traditionally provided by the private sector.
Maintenance of roads and highways are a a function performed by both private companies and local governments, and each have been subject to ordinary rules of negligence (as found in Ireland v. Oswego and Hutson v Mayor of City of N.Y. ).
Therefore, the appellate court found that the worker was engaged in a proprietary function in this case and that he failed in his duty to warn the plaintiff of the dangerous conditions. Even though the maintenance work hadn’t yet begun and they were just starting to set up, he had a duty to let her know there was a danger, the court ruled.
So even though the city wasn’t responsible for a failure to fix the road due to a lack of prior adequate written notice according to the city ordinance, rejection of that position didn’t mean the jury’s position in finding the city worker negligent in carrying out his proprietary duties was incorrect as a matter of law.
While this wasn’t a typical pothole-related claim, the city will cover those. The New York Times reported in April that the state budget approved $40 million to help repair pocked roads from a particularly brutal winter, with some 16,000 tons of patch mix.
Last year, the state paid out $5.5 million in pothole-related claims. The vast majority of those involved minor damages to motor vehicles.
If, however, the city is made aware of a dangerous pothole or other condition in writing and does not mitigate or address it and an injury subsequently results, the city may have little defense against liability.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Wittorf v. City of New York, June 5, 2014, New York State Court of Appeals
More Blog Entries:
Bustos v. Lenox Hill Hospital – Sufficient Evidence for Birth Injury Cases, June 5, 2014, New York City Injury Lawyer Blog