Tripped on a New York City Sidewalk? What Makes a Trip and Fall Case Succeed
If you tripped over a broken or uneven sidewalk in New York City, the outcome of your case often depends on two things: the size of the defect, and how quickly you preserved evidence of it. Trip and falls are among the most common personal injury cases in New York, yet many of them fail before they ever get started.
I'm Jonathan R. Ratchik, owner and partner at Kramer, Dunleavy & Ratchik, PLLC, a personal injury firm in New York City. In this blog, I'll walk through what separates a successful trip and fall case from an unsuccessful one, and what I want anyone recovering from a fall to know.
Trip and fall or slip and fall?
People use the two terms interchangeably, but they describe different accidents. In a slip and fall, your feet slide out from under you because there is too little friction, usually from ice, grease, or a spilled liquid.
In a trip and fall, your foot strikes something and your forward momentum stops abruptly. In New York City, the most common culprit is an uneven sidewalk.
Who is responsible for the sidewalk?
In New York City, the owner of the adjacent building usually is. More than a few years ago, the City shifted responsibility for sidewalk maintenance to property owners, who now have a legal duty to keep the sidewalk in front of their buildings in a reasonably safe condition.
There is one important exception. For one-, two-, or three-family homes that are owner occupied and used only as residences, the City of New York remains responsible for the sidewalk. In those cases, an injured person generally must show that the City had prior written notice of the dangerous condition, which is a higher hurdle to overcome.
Knowing which rule applies to the place you fell shapes who the claim is brought against and what you will need to prove.
The Goldilocks rule: not too small, not too big
A lawyer much smarter than me once offered an analogy that I think perfectly captures which sidewalk defects lead to strong cases. Like Goldilocks, the condition has to be "just right."
Too small. If the height difference between two sidewalk slabs is minor, such as a quarter inch or sometimes a half inch, courts may treat it as a trivial defect. Courts look at all the surrounding circumstances, but a truly trivial defect is not grounds for a claim.
Too big. If the height difference is large or the sidewalk is badly broken up, the property owner will argue the hazard was open and obvious. There is no duty to warn people about obvious conditions, although that does not relieve an owner of its duty to maintain the sidewalk.
Just right. Height differences from about a ½” to over an inch are the kind the City expects property owners to fix, either by ramping the edge with concrete or, better, by replacing the uneven slabs.
Where your defect falls on this spectrum is one of the first things I look at when evaluating a case.
A photograph is worth a thousand words
The single most important thing you can do after a trip and fall is photograph the condition that caused it. A jury understands a hazard far better from a picture than from a verbal description.
Take two kinds of photos:
Close ups that show the defect itself, such as the height difference between slabs. Placing an object near the defect, such as credit card or business card, can also give someone a sense as to the dimensions of the conditions.
Photos in context that show where it is and how it looks as you approach it. These help answer whether a reasonable person walking down the sidewalk should have seen it.
Speed matters because sidewalks get repaired. The law encourages owners to fix hazards, and evidence of a subsequent repair generally cannot be used as evidence of negligence. If the defect is fixed before anyone documents it, the evidence you need may be gone for good.
Street imagery and video: powerful, but time sensitive
New York courts allow the use of Google street images, the photos captured by vehicles that drive city streets. Because most sidewalk defects develop slowly, these images can show that a hazard existed one, two, or even five years before your fall. That can help prove the owner had constructive notice of the problem.
Still, do not rely on street images alone. Some locations are never captured, and many trip and falls happen indoors, in a lobby, hallway, or store.
Video footage can be even more persuasive. Very few places in New York City are free of security cameras, and many store and building cameras point at the sidewalk. I've handled successful cases where my client's fall was caught on camera, showing exactly where and why it happened. Footage may not settle questions like whether you were distracted, but it can go a long way toward proving the condition existed, caused the fall, and should have been repaired.
The catch is timing. As a rule of thumb, surveillance systems often record over footage after about 30 days. Once it’s gone, it is gone forever.
What to do after a trip and fall
Get medical attention. Your health comes first, and medical records document your injuries.
Photograph the scene right away, both close up and in context, or ask someone to do it for you.
Ask about cameras. Note any stores or buildings with cameras in the vicinity of where you fell, and act before footage is overwritten.
Talk to an experienced personal injury attorney. The first few days and weeks are when evidence is most available and easiest to preserve.
If you were hurt in a trip and fall anywhere in New York City or New York State, my team and I at Kramer, Dunleavy & Ratchik, PLLC can help you understand your options. Call 212-226-6662 or visit www.kdrpilawyers.com.
Experience you expect, commitment you deserve.
This article is for general information only and is not legal advice. Every case depends on its own facts. (Attorney Advertising)
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