Sidewalk Injury Claims and Regulations

Most of us never give a second thought to sidewalks. We just assume they’re safe. Unfortunately, a mere crack in the pavement, chipped piece of concrete, or sudden change in elevation can shatter that assumption in a split second when you go toppling head-first into pavement. A sidewalk injury can result result in serious harm to the head, face, neck, and hands.

Common causes of sidewalk injuries include:

Cracks are quite common. So are uneven or raised elevations in pavement. They usually develop over time from age, soil conditions, tree roots, weather changes, and from variations between hot and cold seasons. They can also result from inferior materials used to build or repair the sidewalk.

Potholes normally develop when concrete or asphalt separates. The weight of consistent pooling of water, snow and ice are other factors. Potholes can develop when the roots of trees and shrubs force the concrete or asphalt to break apart.

Debris on sidewalks can create a minefield. Trashcans, overflowing trash, fallen leaves and tree limbs, children’s bicycles, wagons, and other toys are just some of the material that can cause a trip and fall.

Ice and snow accumulation is inherently dangerous. Ice is often difficult to see. Its transparency often hides the danger underneath. Snow can act like quicksand, grabbing your shoes and tripping you.

The Law and Sidewalk Repairs

Yes. Property owners must repair cracks, uneven pavement, and potholes in the sidewalk. It’s the property owner’s responsibility to repair any problems on the sidewalks adjoining her property. It’s also the property owner’s responsibility to remove snow and ice and keep their sidewalks clear of debris.

Private property owners sometimes receive notices from the city based on the city’s sidewalk regulations. The notice is an order to repair what the municipality determines is a defect or dangerous condition. The property owner’s failure to repair the problem can result in a ticket. In some cases, the city will repair the damage and charge the property owner for the cost of repairs.

Home and business owners

Every city and town across the United States has different rules and regulations about sidewalk maintenance. Most municipalities hold home and business owners responsible for maintaining the sidewalks adjoining their property. The law uses the term “adjoining” instead of “in front of” because the property may be on a corner lot where the sidewalk extends around the front and side of the property.

If you tripped and fell on a bicycle your neighbors’ child left on the sidewalk in front of his parent’s home, the parents may be liable. A storeowner may liable if you suffer a sidewalk injury by slipping and falling on accumulated ice or snow in front of the store.

Municipalities

Sidewalks not adjoining private property are normally the responsibility of the federal, state, or municipal authority in control of the sidewalk. These government agencies share the same duties and liabilities as private property owners. Government-owned or controlled sidewalks must stay safe and free of defects or dangerous conditions that may result in injuries to pedestrians.

Imagine you parked in the parking lot adjoining your local post office. As you walked along the sidewalk, you tripped and fell on an elevated piece of concrete and seriously injured your hand and wrist. In this case, the federal government would probably be liable.

Reasonable Notice and Time to Cure

A property owner isn’t liable every time a pedestrian is hurt after tripping and falling on their sidewalk. The law gives property owners a reasonable amount of time to discover a sidewalk’s defect and repair it.

For example, a heavy snowstorm came in during the night. A store’s hours are 9:00 a.m. until 7:00 p.m. At about 11:00 p.m., a pedestrian tripped and fell on snow that had accumulated on the sidewalk in front of the storeowner’s property.

In this case, the storeowner probably would not be liable. There just wasn’t a reasonable amount of time for the storeowner to remove the snow. Also, because the store’s hours were from 9:00 a.m. until 7:00 p.m., the storeowner didn’t have reason to believe anyone would walk on the sidewalk at that hour of the night.

However, if the storeowner still hadn’t cleared the sidewalk by 9:00 a.m., there’s a greater chance she’s liable. That’s because it’s reasonable to believe pedestrians are walking on the sidewalk from about 6:00 a.m. onward.

Of course, the courts decide every case on its own merits. Where one judge might hold the storeowner liable for not clearing the snow by 7:00 a.m., another judge might think the storeowner should have cleared the snow by 5:00 a.m. It all depends on the circumstances.

It’s safe to say a property owner should do everything reasonably possible, as quickly as possible, to make sure his or her sidewalks are clear and safe for pedestrians.

Exceptions for Government Authorities

Municipalities often avoid liability by creating sidewalk regulations to protect themselves. Unlike private property owners who can easily maintain their sidewalks, government authorities are often responsible for hundreds, even millions of square feet of sidewalks.

The courts have traditionally said it’s unreasonable for a municipality to have to patrol every square foot of sidewalk. That would require hundreds of people patrolling, just to look for defects. Unless your municipality has actual or constructive notice of the defect or dangerous condition, they have no liability for injuries.

Actual notice is a citizen’s written complaint. Of course, even with notice, if the defect or dangerous condition is minor, the municipality might not be held liable.

Constructive notice refers to conditions that are so obviously dangerous the municipality should have addressed them. This might include a large, easy to see pothole, or a piece of sidewalk that separated more than several inches.

If you tripped and fell on a piece of sidewalk that had a small crack in it, the city is probably not liable. The defect in the sidewalk was minor enough to escape the city’s notice. In fact, some municipalities have regulations stating an elevation must measure more than 2 inches high, or a crack must measure 6 inches long before the city becomes liable, whether they had notice or not.

Sovereign Immunity and Tort Claims Acts

Another exception lies under the municipalities’ protection from personal injury claims by sovereign immunity. Sovereign immunity is a legal doctrine that states a government authority is immune from lawsuits for most personal injury claims. Fortunately, most municipalities will waive sovereign immunity in private injury claims. Sidewalk injuries are one type of injury for which the government may waive sovereign immunity.

If you suffer a sidewalk injury on property owned by your state, city or town government, you have to file a tort claim. Normally, you only have about 45 days after your injury to file your claim with the municipality. If you miss the deadline, the government can reject your claim outright.

Evidence – Proving Your Injury Claim

To succeed in your sidewalk injury claim requires evidence. The more credible your evidence the better your chance of settling your injury claim for a substantial amount. Here are some examples of evidence you can use to prove your claim:

Surveys – Often private property owners will claim the sidewalk isn’t on their property. When that occurs, go to your local property tax department. There you can look up the address where the sidewalk is located and see the survey plot marking the property’s exact boundaries. A clerk can usually make a copy for you for a nominal charge of less than $10.

Photographs – Use a digital camera or your cell phone to photograph the defect or dangerous condition. Use a ruler or other measuring device to show the size of the crack or height of the elevated portion of the sidewalk. Be sure to take enough photographs to make clear the sidewalk’s location and the size of the defect.

Witness statements – Ask those with you when you fell to write down, sign, and date what they saw. Don’t worry about notaries or sworn affidavits. They aren’t necessary. Then, canvass the neighborhood to ask property owners if they knew about the sidewalk’s condition. If so, take down their names and contact information. If they previously sent notices to the city or town about the problem, ask for copies.

Damages – If you don’t have damages, you don’t have a case. To obtain a settlement from a private property owner’s insurance company or from the municipality, you must first have a basis for damages. Damages include medical bills, out-of-pocket expenses, lost wages, and pain and suffering. Although you don’t necessarily have to have out-of-pocket expenses or lost wages, you must have medical or chiropractic bills.

Dealing With the Insurance Company

Private property owners normally carry a form of business or homeowner’s insurance. When you first speak with an insurance adjuster you’ll get a claim number. The adjuster may ask you for a recorded statement. It would be wise to consult with an attorney prior to giving your statement. When giving your statement, make sure you don’t admit to any fault. Stick to the facts and avoid implicating yourself.

For example, if you tripped and fell on a bicycle left on your neighbor’s sidewalk, don’t tell the adjuster you were running when you fell. And don’t mention any previous injuries. Don’t volunteer any information that might tend to cloud your claim.

Tell the adjuster about your evidence and offer to send her copies. The more organized your evidence the higher the likelihood she’ll take you seriously. Don’t agree to any settlement until you finish treatment and all of your damages are clear to the adjuster.

Personal Injury Attorneys

If your injuries are minor (soft tissue), including sprains, cuts, or bruises, you can probably handle your own claim. If your injuries are the more serious hard injuries like broken bones, scarring, or head injuries, you’ll need an experienced personal injury attorney.

An attorney can conduct discovery. That means she can subpoena records, take depositions (recorded statements) of friendly and unfriendly witnesses, and if necessary, file a lawsuit. When it comes to hard injuries, you’ll usually receive a much higher settlement with an attorney than if you represent yourself.

Case Study

Premises Liability Claim Due to a Sidewalk Defect – In this case the plaintiff is seeking damages for personal injuries incurred after tripping and falling over a raised metal cap in the sidewalk.

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