Plaintiff Raises Question of Fact on Issue of Whether City was Negligent in Affirmatively Creating a Dangerous Condition
In Ahern v. City of Syracuse, (4th Dept. 2017), the plaintiff commenced an action against the City of Syracuse for injuries he allegedly sustained after he tripped and fell on a broken curb. The Fourth Department acknowledged that the defendant met its initial burden by demonstrating that it did not receive prior written notice of the allegedly dangerous or defective condition. However, the plaintiff raised an issue of fact as to whether the City “affirmatively created the defect through an act of negligence…that immediately result[ed] in the existence of a dangerous condition.” In opposition, the plaintiff submitted evidence that he was familiar with the walk and curb area where the City was performing excavation work because he had parked his vehicle on that street for nearly 10 years. The plaintiff testified that after the fencing was removed from the construction area he noticed that the curb was damaged. Additionally, the Fourth Department rejected the City’s argument that the alleged defect was open and obvious. The Appellate Division noted that regardless of whether a dangerous condition is open and obvious it does not negate “the duty to maintain premises in a reasonably safe condition, but, rather, bears only on the injured person’s comparative fault.”
Prepared by Nicholas Hriczko, Esq.