A 72-year-old retired minister was walking down the sidewalk near Marcy Avenue in Brooklyn when he tripped and fell. The incident took place right at a spot where a subway grate sank two inches below the concrete of the sidewalk surface. As a result, the former minister fractured his right elbow, and required an operation to fix the fractures that involved the insertion of metal wires into his arm
This is classic “municipal liability” case involving a government or public agency. Municipal liability cases are brought against such bodies as the City of New York, the New York City Housing Authority, and the New York City Transit Authority, among others. Remember, before suing a public agency, an injured person has to file a “notice of claim” with the proper authorities within 90 days of the accident. In this case, the injured party sued the City of New York and the New York City Transit Authority. His lawyers took care to file timely Notices of Claim against both entities before starting a lawsuit.
Often, the key to winning a municipal liability case is proving that the City or public agency was aware of the problem or defect, in advance of the incident, but failed to repair it.
In this instance, the subway gate was not only sunken into the pavement as a result of improper installation, but the City of New York had received prior written notice of the defect and failed to do anything to correct it! Both of those failures created the opportunity to sue the City and the Transit Authority. At trial, a Transit Authority employee testified that the agency inspected the grates every six months; however, the agency was unable to produce any record of these inspections in Court.
The defendants then tried the old tactic of blaming the victim, claiming that the minister was partially negligent for failing to watch where he was walking. This argument did not distract the jury. Evidence introduced by the plaintiff’s lawyer established that it was the Transit Authority’s responsibility to repair the defect. The jury found in favor of the minister.
It is important to understand that one of the reasons we have government agencies is make the city a safe place to live. We should be able to walk on our streets and sidewalks without risk of injury. The minister now has loss of motion, atrophy and numbness in the extremities of his hands. The injury interfered with his retirement years and his ability to enjoy his life, including some of his favorite hobbies such as bowling and playing the tambourine. Fortunately, he was compensated for his loss.