Posted On: April 9, 2012 by Stephen Bilkis

A lady was walking on a sidewalk along 129 South Union Street in the village of Spencerport.

A lady was walking on a sidewalk along 129 South Union Street in the village of Spencerport. She suffered personal injuries from a trip and fall while walking on a broken tree grate cover on June 28, 2008. She sued the village of Spencerport in damages alleging that the trees along South Union Street were covered with a grating that abuts the sidewalk. The grating was broken and she stepped on that portion of the broken grating at the base of a tree on South Union Street and it caused her trip and fall.

The tree grate where the lady fell is located between Union Street and a building. The tree grate surrounding the trunk of the tree was surrounded by brick and the sidewalk.

The injured lady sent a notice of claim to the village with photographs on August 11, 2008. The summons and complaint was filed on April 10, 2009.

After discovery, the village moved for a summary judgment to dismiss the complaint. The village alleges that under its law, in order to maintain an action in damages against it, there must be notice of the defective condition given to the Village clerk and a reasonable time be given to the Village to repair the defect. And only when it failed to repair the defect can it be made liable.

The Village goes on to assert that once it has proven that it has not been given any prior notice of the defect in the sidewalk, the plaintiff has the burden to demonstrate that the Village created the defect through an act of negligence or that the Village derived special use with caused the defect.

The Court has determined that the Village has met its burden of proving that it had no prior notice of any defect in the tree grate on Union Street. The burden now shifts to the lady to prove that there are questions of fact regarding the notice given to the Village or that there is an issue of fact that this case falls under exceptions to the written notice requirement.
The lady argued that the tree grate is not considered a part of the sidewalk or street and so there is no need for a prior notice to maintain this action for damages. The lady bases her argument on an older case which decided that a tree well is not a part of the sidewalk.

The Court resolved to grant the motion for summary judgment and dismiss the complaint. The Court held that the lady failed to prove that this case falls under the exception where no prior written notice is required. The old case relied upon by the lady cannot be applied to this case because the holding of the Supreme Court in that old case that tree wells are not part of the sidewalk is only for the purpose of applying the Administrative Code of the City of New York. The issue there in that case was different from this case.

In that case of Vucetovic, the question was the liability of landowners who lands abutted a sidewalk with a tree well. Here the lady did not sue the owner of the building which abutted the tree well where she tripped and fell. And more importantly, the definition in that case of a sidewalk was determined to be a portion of a street which is intended for the use of pedestrians.

It is clear that the tree well was located at or near the sidewalk and was intended for the use of pedestrians. For this reason, the tree well in this case must be considered as part of the sidewalk and no liability shall attach to the Village when there had been no prior notice of any defect in the tree well in question.

Trees on the sidewalk can pose tripping and falling hazards. If you have sustained injuries through a similar accident such as the one described above, filing a lawsuit can be difficult and confusing. You need an experienced New York Trip and Fall lawyer to explain the process to you. At Stephen Bilkis & Associates, their New York Trip and Fall lawyers will stand by and help you understand the legal process. They can present and argue your side to ensure that you are compensated.

Do not delay; call Stephen Bilkis & Associates today. Ask to confer with any of its New York Trip and Fall Lawyers whose office is accessible and conveniently located in the New York area. Get advice from our New York Trip and Fall Attorneys regarding compensation for injury resulting from another’s negligence. Talk to a Trip and Fall Lawyer from Stephen Bilkis and Associates.