A woman filed a complaint against the town for her personal injuries due to her fall which occurred on a sidewalk. The plaintiff was caused to trip and fall over the broken, jagged remains of a metal sign post placed in the sidewalk. It is claimed that the Town negligently maintained, inspected and operated the sidewalk. Furthermore, they had actual and public notice of the defect and failed to warn of the same.
In motion, the defendant Town seeks request to dismiss the complaint on the basis that it had no prior written notice of the defective condition pursuant to the code of the town, which requires prior written notice to the town before an action may be commenced. The Town further contends that it did not create the defect being complained of. In support of the motion the defendant has submitted, and the plaintiff resubmits, an attorney’s affirmation; copies of the summons, complaint and answer, the plaintiff’s formal statement; and copies of the examinations before trial of the plaintiff woman and the defendant Town.
In opposing the motion, the woman submits a copy of the Order to Show Cause; an attorney’s affirmation; a copy of the prior motion; a copy of the prior order dated April 2010; a partial, unsigned copy of the transcript of the defendant; copies of photographs; letter dated March 2008 from Director of Transportation Operation with annexed pages: and two pages of the deposition transcript of the plaintiff.
Based on records, a municipality has enacted a prior written notice order pursuant to Town law. It may not be subjected to liability for personal injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice. Actual or public notice of a defect does not satisfy this requirement. Town law provides in relevant part that no civil action shall be maintained against any town or town superintendent of highways for damages or injuries to person or property sustained by reason of any defect in its sidewalks, unless such sidewalks have been constructed or are maintained by the town or the superintendent of highways of the town pursuant to statute, nor shall any action be maintained for damages or injuries to person or property sustained by reason of such defect, unless written notice thereof, specifying the particular place, was actually given to the town clerk or to the town superintendent of highways, and there was a failure or neglect to cause such defect to be remedied, or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice.
In order to establish a legitimate complaint of negligence, a plaintiff has to demonstrate either that the defendant created the dangerous or defective condition which caused the accident, or that they have actual or constructive notice of the condition. While, to prove a legitimate case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition, the defendant, on a request of dismissing the complaint is required to make a legitimate presumption showing affirmatively establishing the absence of notice as a matter of law. Liability can be predicated only upon failure of the defendant to remedy the danger after actual or constructive notice of the condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it.
The woman testified at her examination before trial to the effect that she has been disabled since 1986 due to a back injury which caused her to experience difficulty walking. She also had problems with her neck. On the date of the accident, described as a sunny day, she had walked from her home and did some shopping. After leaving the store she walked back again on a cement sidewalk with her friend pushing the shopping cart. When there were still walking on the sidewalk her friend asked her to push the shopping cart. So the plaintiff started to cross into the street, to her right looking at her friend as she was talking to her. There was a brick area between the sidewalk and the road. As she was stepping from the sidewalk to cross over the brick area, a metal piece caught her sneaker and causing her to fell. At no time prior to turning to walk toward her friend did she observe the surface of the area she was about to walk onto and she did not know what she tripped on as she was falling. Upon being shown some photographs, she indicated that she fell in the area between a planter and a tree, and identified a bulge. She stated that she first observed the metal bulge after she fell when she stood up and was leaning against the tree. She described it as being a gray color from a metal sign. She further stated that about four years prior someone had cut the signs down and was being re-done, but she did not know who was involved with the signs.
Maintenance crew leader testified to the effect that he has been employed by the town for thirty-two years and he is responsible for maintaining all signs and pavement markings in the Town. He testified that he went to the site of the accident and physically looked at the sign. He determined that the post that was stuck in the ground did not belong to the town and believed it was a bus stop sign belonging to one transit group. He stated that when the Town installs their rails or sign posts, the posts are one piece, twelve feet long, and are bound in the ground. He further testified that the transit group uses a system wherein a short, three-foot post is driven down into the ground, and then another section is bolted onto it so it would then be about seven feet high. He identified the post that was in the ground as being a short, three-foot base with a section broken off leaving an irregular break between the two wings on the post. The area to the right was not broken, so the post, he opines, must have been the shorter, three-foot post which is not used by the Town, he did not know, however, if there was a process which the transit group had to complete to install the signs and did not know if they needed a permit from the Town to install a sign. He was unable to determine from looking at the photographs whether or not there had been a bus stop at the site. He further testified that when the Town installs a sign, a work order would have been made for the installation of the sign as well as a maintenance order to maintain the sign. He made a search of the work, maintenance and work orders and found no order of any kind for the area of the accident.
The principal clerk set forth in her affidavit that she is in the service with the Town and conducted a search for three years prior to April 2006 of all records maintained by the Town light way department concerning the sidewalk area and that no prior written notice of any road defect at the location of the accident was given to the town. In her affidavit, the clerk typist state that she is employed by the Town with the Town Clerk’s Office and her duties include the logging of litigation pleadings, which includes Notices of Claim and Summons and Complaints received by the Town Clerk’s Office. She states that she made a diligent search of the index record book and files maintained by the Town Clerk of the Town for three years prior to April 2006 in regards to the location. The search did not reveal any written complaints made to the Town for the location being questioned.
Based upon the foregoing, it is determined that the defendant Town has demonstrated legitimate presumption right to request dismissing the complaint on the basis it received no prior notice of the condition complained of herein, and that the broken post was not a post installed by the Town, but was, instead, installed by transit group. As set forth in, the Town may not be held liable for an allegedly defective condition in a sidewalk unless it received prior written notice of the condition. Since there was no prior written notice of any defect in the sidewalk, the plaintiffs claim must be dismissed, unless the plaintiff woman is able to demonstrate that the Town created the alleged defective condition.
In opposing the motion, the plaintiff woman argues the sign post constituted an obstruction under the article of the town code and that it relies in requiring that either the Town Clerk or the Town Superintendent of Highways must receive prior written notice of the complained of defect before a civil action may be maintained against it. The Counsel for the plaintiff argues that the sworn affidavit of the Town’s principal clerk is deficient as it states that she searched the records maintained by the Town’s Highway Department. He argues that she never searched the Town Clerk’s records for prior written notice and did not search all records rather than just for a three year period prior to the date of loss.
It is noted, however, that the clerk typist has searched the records of the town for three years prior to April 2006 and the search did not reveal any written complaints made about the location and the complained of defect.
The Counsel for the plaintiff also argues that there are issues capable of trial as to whether the Town owned the truncated sign or created the complained of defect. The Counsel further asserts that the plaintiff testified that she recalled the Town cutting down signs and installed new no parking signs when they were redoing some project approximately four years before. However, the plaintiff clearly set forth in her testimony that she did not know who was involved with the signs. Therefore, the counsel’s assertions are without basis as the plaintiff had no knowledge as to who cut the posts and no admissible circumstances submissions have been provided to demonstrate that the Town owned the posts or caused or created the condition complained of.
In the absence of any admissible circumstances submissions to raise a factual issue, and only the assertions by the counsel for the plaintiff, who is not a party with knowledge, it is determined that the plaintiff has failed to raise a factual issue to rule out the request for complaint dismissal in this matter. Mere speculation and unsubstantiated allegations are not sufficient to raise a factual issue to defeat a motion for summary judgment. As a result, request to dismiss the complaint was granted.
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