Sidewalk Liability Shifts To New York City Property Owners Under New Law
February, 2004
Pursuant to New York law in effect prior to September 15, 2003, an owner or lessee owed no duty to pedestrians to maintain the sidewalk in front of its premises. D’Ambrosio v. City of New York, 55 N.Y.2d 454, 450 N.Y.S.2d 149 (1982). “An owner of land abutting a public sidewalk does not, solely by reason of being an abutting owner, owe a duty to keep the sidewalk in a safe condition.” Loforese v. Cadillac Fairview Shopping Centers, 235 A.D.2d 399, 399 (2d Dep’t 1997). Because property owners had no duty per se to an injured pedestrian, it was necessary for the plaintiff to prove that the property owner assumed a duty to the plaintiff by creating a dangerous condition or making the natural condition on the sidewalk more hazardous than it was through the actions of the property owner. Nadel v. Cucinella, 299 A.D.2d 250, 750 N.Y.S.2d 588 (1st Dep’t 2002); Genen v. Metro North Railroad, 261 A.D.2d 211, 690 N.Y.S.2d 213 (1st Dep’t 1999); Gibbs v. Rochdale Village, Inc., 282 A.D.2d 706, 724 N.Y.S.2d 324 (2d Dep’t 2001). Tort liability to third parties will not be imposed against an owner or lessee of adjoining property absent a statute specifically imposing tort liability for breach of that duty. Booth v. City of New York, 272 A.D.2d 357, 707 N.Y.S.2d 288 (2d Dep’t 2000).
Under the old law, the City of New York was inundated with tens of thousands of new cases every year to defend against sidewalk liability which created substantial budgetary constraints while absorbing valuable resources within the City government. According to Mayor Bloomberg, in the past three years, the City has paid over $189 million in judgments as a result of actions brought for damages caused by sidewalk defects and slip and falls.
When suing the City of New York, plaintiffs are required to file a formal Notice of Claim under the General Municipal Law within 90 days of the accident. The Notice of Claim is a condition precedent to filing a lawsuit which has a one year statute of limitations. Further, the plaintiff must establish that the City of New York had actual and/or constructive notice of the sidewalk defect, which would require production of a map from the New York City Department of Transportation for the time period in question and an Examination Before Trial of a record searcher from the Litigation Support Unit of the Department of Transportation to testify whether any application, permit, repair order, violation, contract, milling/resurfacing, or complaint records were found for the specific city lot where the accident occurred. This proved to be a very high burden for plaintiffs to overcome. In this situation, a plaintiff would resort to a direct claim against the property owner for negligence; but, in most instances, the property owners held no duty to these plaintiffs and the cases were dismissed as to the property owners. Insurance carries for property owners were confident in knowing that their insureds generally held no liability for these sidewalk slip and fall incidents.
On September 15, 2003, a new law went into effect in New York City shifting the duty for damage or injuries caused by sidewalk conditions from the City of New York to real property owners. Under an amendment to Section 7-210 of the Administrative Code of the City of New York, property owners are now liable for injuries as a result of dangerous conditions or defects in the sidewalk. Specifically, property owners are liable for “the negligent failure to install, construct, reconstruct, repave, or replace defective sidewalk flags and the negligent failure to remove snow, ice, dirt and other material from the sidewalk.” This new legislation has important insurance implications for property owners and insurers.
Under a companion bill to the legislation for § 7-210, property owners are specifically required to carry liability insurance that provides coverage for injuries and damage caused by unsafe sidewalk conditions. Most property owners already have liability insurance that should cover these claims. Sometimes the insurance policies sold to the co-op or condominium board, managing agent, etc. may have specific coverage for these accidents.
Learning Points:
As a result of § 7-210, commercial property owners will now be liable for an abutting sidewalk which is negligently maintained, defective, or in a dangerous condition. Prospectively, it will be necessary for property owners to retain contractors to repair any sidewalk problems because the City of New York no longer will be responsible for repairing the sidewalk. The owner of the property is now responsible for all repairs and maintenance. Insurance carriers should consider informing their New York property owners, if not already, of the new law and instruct their insureds to give immediate notice of any and all potentially covered claims. In addition, property owners must be cognizant of existing and new sidewalk problems and immediately repair, as well as maintain appropriate insurance coverage. •
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