The defendant in this case has move for a summary judgment and a dismissal of a personal injury complaint filed by the plaintiff. The plaintiff has filed a cross-motion in opposition. Another co-defendant has also moved for summary judgment and dismissal. All motions were denied by the court by the reasons that follow below.
The housing authority has entered into an agreement with another company to improve the grounds on one of the agency’s housing projects. Sometime later, a concrete company enters the picture to conduct the cement or concrete work on the grounds.
The plaintiff recounts what happened on the day of her accident. The plaintiff was with her husband during that day. They were walking on the sidewalk along with a healthcare staff when her right foot got stuck in a hole located between the sidewalk flags. The plaintiff allegedly sustained injuries due to a defect on the sidewalk. The trip and fall accidenthappened a short distance away from the supermarket and almost 20 feet from the street curb.
According to the plaintiff’s testimony, the weather during that day was sunny. The ground was dry. When the plaintiff got up from her fall, she noticed the hole on the sidewalk. During her deposition, the plaintiff described the hole and gave her estimated dimensions of the whole. Based on the statement, she had not seen that hole until her accident.
The husband of the plaintiff also testified and said that he saw a hole on the ground after his wife fell. This was the same crack or hole that his wife described in her deposition. The healthcare staff assigned to care for the husband of the plaintiff also testified that she saw the hole. She also added in her testimony that she had seen that hole before. She estimated that the hole has always been there for about five to six years.
The housing authority has challenged the allegations of the plaintiff and said that it cannot be held liable for her accident since the defect on the sidewalk was considered a trivial one. The defendant also said that the plaintiff cannot establish that the defect caused her accident.
In order for the court to grant summary judgment to the defendant, there must be sufficient evidence to prove that the hole on the sidewalk was just a trivial defect. If this requirement is not met by the defendant, the motion for summary judgment will be denied. The burden to receive entitlement for summary judgment lies on the city housing authority. This is not a criminal matter.
The law states that the party who built public roads and sidewalks will be held for damages because of negligence in maintaining and repairing trivial defects. The law also states that these trivial defects should not be regarded as trap even if pedestrians might happen to slip or stumble.
The measurement of the hole on the sidewalk that caused the plaintiff’s fall measures more than 3 inches. According to the terms of the law, defects on sidewalks measuring an inch or more should not be considered as trivial.
The plaintiff submitted actual photos of the sidewalk defect to the court as evidence and declared it to be unsafe for pedestrians. The expert who conducted the inspection of the sidewalk had concluded that the defects were there for a long time based from the before and after shots of the sidewalk. However, the opinion of the expert was not sufficient to establish the housing authority’s entitlement for summary judgment.
The cross-claims filed against another defendant, the cement company, had contended that it is not liable for damages towards the plaintiff. The cement company further declared that the housing authority should be liable.
Based on the facts presented to the court, the motion for summary judgment filed by defendants had been denied. The contracting company was granted the motion but only on the issue concerning contractual indemnification.
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