Posted On: April 8, 2012 by Stephen Bilkis

In 2008, two neighbors from Kings County New York were summoned by a pedestrian

In 2008, two neighbors from Kings County New York were summoned by a pedestrian who sustained personal injury when a broken protruding pointed wire fence and a raised brick which were surrounding a tree well on the sidewalk, adjacent to the curb adjoining the homeowners' property caused her to fall. The homeowners, in their sixteen years of owning the property, never repaired or maintained the wire fence or bricks.

Records revealed that both defendants testified that the bricks around the tree were present when they purchased the house 16 years ago and that he had performed no repairs, maintenance or modifications prior to the accident. Both also testified that they did not place this small fence around the tree and they have no idea as to who may have placed this fencing. The defendants also testified that neither of them has ever pushed that fence back to its straight position at any point. Subsequent to the accident, defendants replaced their sidewalks and also had the fence and bricks replaced.

Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner. There are, however, circumstances under which this general rule is inapplicable and the abutting landowner will be held liable. Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting owner, where the abutting owner affirmatively caused the defect, where the abutting landowner negligently constructed or repaired the sidewalk and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty.

In the instant case, it is undisputed that the defendants did not derive a special benefit, did not affirmatively cause the defect, did not negligently (or otherwise) construct or repair the tree well and are not subject to a statute imposing liability. Furthermore, one of the homeowner testified that, other than removing leaves by hand, he performed no maintenance on the tree well. This is sufficient to satisfy the defendants' initial prima facie burden of establishing their entitlement to summary judgment as a matter of law.

The Plaintiff in opposition argues that the Opposition issues of fact exist as to defendant's maintenance of the subject fence, and tree well which require resolution by the trier of fact; the portion of the fence that is protruding is what caught the plaintiff's pants which prevented her from taking the next step and falling; the annexed photographs speak volumes regarding the defendant's liability in this matter because first, they show the defective protruding fence and more importantly, they create an issue of fact as to whether it is credible that the defendant never saw or did anything regarding the fence for the 16 years he owned the property before the plaintiff's accident. However, miraculously after plaintiff's accident he becomes concerned with the aesthetics of the fence and replaces it.

The fact that plaintiffs owned the property for 16 years does not support an inference that plaintiffs negligently maintained the tree well. The post-accident reconstruction of the tree well was anything but miraculous, as it occurred as part of defendants' reconstruction of the entire abutting sidewalk.

The plaintiff's assertions are premised solely on surmise and speculation, and are insufficient to defeat the defendants' motion for summary judgment.

Thus, plaintiff has completely failed to raise an issue capable of trial and based on the foregoing, the defendants' motion for summary judgment is dismissing the complaint was granted.

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