How New York City’s “Pothole Law” Could Affect Your Personal Injury Case

Potholes are one of the most common safety hazards on New York City streets. They pose a risk not just to vehicles but also pedestrians. Indeed, most longtime New Yorkers have probably experienced at least one accident (or near-accident) that involved tripping over a pothole.

When such accidents happen, however, New York City’s liability for a victim’s injuries turns on the application of the so-called “Pothole Law.” Formally known as N.Y.C. Administrative Code § 7-201(c), the Pothole Law essentially states that an accident victim cannot sue the city for damages due to a defect in “street, highway, bridge, wharf, culvert, sidewalk or crosswalk,” unless the NYC Department of Transportation had actual written notice of such defect at least, or the city provides “written acknowledgment” that it knew of such defect.

This “actual notice” standard is stricter than what is required for most slip-and-fall claims against private property owners, where an accident victim can establish liability through “constructive notice,” i.e., showing a defect existed long enough prior to the accident that the owner should have identified and corrected the problem without receiving actual notice.

Affirmative-Negligence and Special-Use Exceptions

There are two judicially recognized exceptions to the Pothole Law’s actual notice requirement. The first is that the city “affirmatively created” the pothole or defect in question through its own negligence. The second is that some “special use results in a special benefit to the locality.”

With respect to the first exception, it is not enough to establish that the city allowed a pothole or defect to exist through neglect or ordinary wear-and-tear. There needs to be some immediate act of negligence that created the problem.

For instance, the United States Court of Appeals for the Second Circuit recently upheld the dismissal of a personal injury case under the Pothole Law after rejecting the plaintiff’s attempt to invoke the affirmative-negligence exception. In this case, Quinn v. City of New York, the plaintiff tripped and fell on a pothole next to a crosswalk in midtown Manhattan. The plaintiff argued that defects “due to combined effects of inadequate repair and improper partial repair of the pothole” by the city caused this accident. The Second Circuit, however, said that did not establish the city’s repair work “immediately” caused the defects, which was required to invoke the exception.

As for the special-use exception, which was not at issue in the Quinn case, that basically covers a situation where the plaintiff is directed to the pothole or hazard by someone acting for the city’s benefit. For example, in a 2007 case, Schwartz v. A. Russo Wrecking, Inc., a Manhattan Supreme Court judge held a demolition company could be sued for a pothole accident caused when its wrecking crew closed off a sidewalk and redirected pedestrians, including the plaintiff, to the pothole where she fell.

Contact a New York City Injury Lawyer

There are many safety hazards that can lead to a serious accident. If you are the victim of such an accident and need legal advice from a qualified New York City injury lawyer, our team is here to help. Contact the Law Offices of Jaroslawicz & Jaros, PLLC, at 212-227-2780 to schedule a consultation. We serve clients throughout New York City and Long Island and surrounding communities.

Sources:

scholar.google.com/scholar_case?case=9660382820937243804

scholar.google.com/scholar_case?case=13403968383864169514