Sidewalks are constructed solely for the purpose of providing a safe space to travel on foot, out of the way of cars or other traffic. Unfortunately, many sidewalks are a threat in and of themselves. Specifically, they can be a fall risk if they are not properly built or adequately maintained.
When a fall injury occurs as a result of an unexpected danger on the sidewalk, whoever is responsible for sidewalk maintenance may be liable to pay compensation for failing to mitigate those risks or warn about them.
Some potential sidewalk conditions that could result in a fall are:
- Uneven pavement;
- Pavement that is cracked;
- Slippery substances (i.e., gravel, mossy vegetation, sand, excessive mud);
- Tree roots breaking through the surface. When pedestrians encounter these conditions – especially when they aren’t open and obvious, granting a chance to avoid them – they may incur serious injury, including traumatic brain injury, hip fractures, twisted ankles, broken wrists and back and neck injuries.
Still, these cases can be somewhat challenging for a few reasons. The first is that in many cases, it is a government agency that is responsible for sidewalk maintenance. That means one must overcome assertions of sovereign immunity (there are certainly exceptions, but it adds a layer of complication to the case). Beyond that, plaintiffs usually need to show defendant had constructive knowledge of the defect. That is, defendant knew or should have known about the defect and yet failed to address the danger or warn people about it.
The recent case of Bernardoni v. City of Saginaw highlights some of these challenges. This was a case before the Michigan Supreme Court, but it’s still relevant to us here in Florida. According to court records, plaintiff was walking on the sidewalk in defendant city when she tripped over a 2.5-inch vertical discontinuity between two sidewalk slabs. She suffered personal injuries in this sidewalk trip-and-fall and sued the city for negligence.
As part of her claim, she stated the defective sidewalk condition lasted at least 30 days prior to her fall (which is the standard for constructive knowledge of sidewalk defects under state law in Michigan). However, in her deposition, she stated she did not know how long the defect had existed. The only evidence she submitted to back her claim was a photograph her husband took about a month after the accident. In each of the two photos, a ruler is used to show the size of the discontinuity on the sidewalk.
Defense moved for summary judgement, arguing this evidence alone wasn’t enough to prove the sidewalk defect had existed for such a length of time that the city had constructive knowledge of it.
The state court of appeals reversed, finding that the high unlikeliness that sidewalk slabs would shift, wear or accumulate debris so quickly, reasonable minds could conclude the condition existed and was readily apparent for at least 30 days prior to plaintiff’s injury.
Unfortunately, the Michigan Supreme Court disagreed. The court ruled that the photographs alone don’t provide a reasonable inference the defect had been presented for at least 60 days prior to those photos being taken. It would be mere speculation, the court ruled, to assert this. What would have been necessary in this case would have been the introduction of expert witness testimony that would demonstrate that kind of sidewalk defect usually forms or grows over a period of time, and that it would have been highly unlikely for such a defect to form in a short time.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Bernardoni v. City of Saginaw , July 5, 2016, Michigan Supreme Court
More Blog Entries:
Homeowner Liability for Home BBQ Mishaps, June 27, 2016, Boca Raton Sidewalk Injury Lawyer