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How a jogger’s trip and fall on a roadway excavation resulted in a civil lawsuit

HOME -> Our blog -> How a jogger’s trip and fall on a roadway excavation resulted in a civil lawsuit

7 August 2019
Premises accident


In a case involving a trip and fall on a roadway, a pedestrian was jogging on a two-way street where motor vehicle traffic was active from each direction.  To avoid an approaching vehicle, the pedestrian began moving to her left, towards the side of the road.  After moving over, she was injured when she tripped and fell over a raised edge of depression in the roadway.

The roadway depression, in this case, was created by ongoing construction work.  At the time of her accident, a construction company was excavating the road in connection with installing gas lines underneath the road.  The injured jogger sued the construction company, claiming it failed to protect her from the dangerous roadway condition created by its excavation work.  After all discovery was completed, the construction company claimed the roadway defect at issue was “trivial” and therefore insufficient to allow a lawsuit to proceed to trial.

In New York, to determine if a roadway defect is “trivial” the courts look at the defect’s width, depth, elevation, irregularity, and appearance.  The courts also consider the time, place and circumstances that caused the pedestrian’s injury.  Unless a defect is considered “trivial” or “physically insignificant”, the issue of whether a roadway defect is a dangerous condition is a question decided by a jury.

The construction company made a special request to the judge asking the court to dismiss the complaint.  The lower court granted the motion.  The injured pedestrian appealed arguing the construction company did not establish that the roadway defect was “trivial” in nature.  The appellate court agreed and reversed the lower court’s decision, reasoning that the construction company failed to demonstrate how the roadway defect was insignificant or did not create a risk of injuring pedestrians on the roadway. The injured pedestrian was able to reverse the lower court decision dismissing her case as she described the dangerous nature of the defect that caused her injuries. 

Here, the appellate court looked at photographs of the defect as it appeared at the time of the accident.  They also considered evidence showing the accident occurred while the construction company was in the process of restoring the excavated area. The court also noted the defect’s measurements as approximately four-feet wide, eight-feet long and at least one-inch deep.  Based on these facts relating to the roadway defect, the court held the construction company was unable to prove the condition it created was physically insignificant.  Nor was the company able to prove the excavation work did not increase the risk of the injured pedestrian becoming injured.

The court also rejected the construction company’s argument that the pedestrian should have been able to avoid jogging into the roadway excavation since photographs showed orange markings placed around its perimeter.   When a pedestrian brings a lawsuit for a trip and fall on a sidewalk or roadway, the person or company responsible for maintaining the area often argues they are not liable since the condition that caused the accident was “open and obvious”.   This means an injured person who makes reasonable use of his or her senses would have been aware of the condition and should have avoided it.

Here, the court found that even if the roadway condition was “open and obvious” the construction company was also required to show the condition was not “inherently dangerous”.  This term means a property owner (or in this case, the company excavating the roadway) must prove the condition was one that did not require repairs to prevent persons from becoming injured.  Based on the facts involving the pedestrian’s accident, the court found the construction company did not prove the defect was “open and obvious” or a condition that was not “inherently dangerous”. 

This case shows how important it is to establish from the beginning of a case the condition of the defect that caused your accident.  An injured person may not think to take photographs immediately after his or her accident.  Contacting an attorney as soon as possible after your accident is essential as we will take photographs and measurements of the roadway condition before it changes.  By investigating the accident scene, we can prove that a condition was dangerous and one that the responsible party should have repaired.

If you or someone you know has been the victim of an accident, please reach out to us for a free legal consultation by calling us 24/7 at 212– 514–5100, emailing me at swp@plattalaw.com, or visiting our law firm in lower Manhattan (42 Broadway, Suite 1927). You can also ask us questions through the 24-hour chat box on our website (www.plattalaw.com). We offer free consultations for all potential personal injury cases.



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