Soundings

Ross Sandler
Step on a Crack . . .
Winter 1997

When Mary Hausser of Long Beach in Nassau County tripped on her neighbor's cracked sidewalk eight years ago, she set in motion a series of events that might ultimately free New York City of one its biggest liability headaches. Having seriously injured her knee, Hausser sued her neighbor under a Long Beach ordinance that made the abutting property owner responsible. The neighbor said the ordinance was invalid, invoking a 1963 state law that seemingly made the city the only liable party. To the surprise of most lawyers, the New York State Court of Appeals ruled last May—after the case had spent years in the lower courts—that the state law said no such thing: the neighbor had to pay.

For New York City, the ruling may prove to be an enormous windfall. In 1996 the city settled over 1,900 claims filed by pedestrians who were allegedly injured in accidents on defective sidewalks—sidewalks that property owners are required by law to maintain but for which they are not legally liable in the event of injuries. With average damages of close to $24,000, these claims alone cost the city the royal sum of $46 million.

Currently, New York's only means for discouraging such suits are two notification requirements: the city must be alerted that a sidewalk is dangerous before an accident takes place, and aggrieved parties must file their claims within 90 days of an accident. Neither requirement has been much of a deterrent. Since 1980 the Big Apple Pothole and Sidewalk Protection Corporation—a creation of New York's trial lawyers—has surveyed the city's 12,000 miles of sidewalks each year looking for defects. The courts have ruled that the maps this effort produces, duly filed with the city, constitute sufficient prior notice. As for the post-accident time limit, it cuts off some claims, but more than 5,000 litigation-minded pedestrians still met the deadline in 1996.

The city may now, at last, transfer the liability for sidewalk trips and falls to abutting property owners, clearly where responsibility belongs in this case. Whatever the excesses of our tort-crazed legal system, there are some torts—wrongful acts—that belong in our civil courts. Allowing sidewalks to become dangerous hazards certainly belongs on that list.

City Council members Stanley Michels and Virginia Fields have introduced Long Beach- style legislation to bring about this shift in liability in New York City, but the bill languishes in committee, thanks in large part to the opposition of real estate interests. Property owners rightly fear the potential costs of this burden, but placing it on them would achieve several goods: not just better sidewalks but also fewer lawsuits as cracks and holes disappeared and as litigious pedestrians realized that private interests, unlike the deep-pocketed city, will fight in court. Alas, in an election year, even so sensible a measure is likely to die in the face of such influential foes.

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