Portions of sidewalks are sometimes pushed up enough to create a tripping hazard when tree roots force up a concrete slab. The owner of that tree has a duty to keep his or her trees from creating such hazards and should arrange to have the sidewalk fixed. Often, a city will have an ordinance under which it will pay for part of the repair if notified before an accident takes place, whereas if notified after an accident the city will repair the sidewalk and send the homeowner a bill for the full repair charges.
Irrigation water or lawn watering that spills across sidewalks and allows slippery moss to grow on the walkway is another typical problem that will render a landowner responsible for accidents.
Most often, municipalities and landowners are “jointly responsible” for sidewalk safety and the victim will bring a claim against both at the same time. The city and the home owner will then negotiate between themselves the amount that each will contribute to a settlement.
The three arguments that municipalities and landowners most often raise against such a claim is either (1) the defect in the sidewalk was so “open and obvious” that the only way an accident could occur would be if the pedestrian was not exercising reasonable care for his or her own safety, or (2) the defect in the sidewalk was so trivial that an ordinary pedestrian would not have fallen, or (3) the description of the fall, such as whether the leg “flew out” or “buckled under” is not consistent with the type of accident described by the victim.
“Open and obvious” dangers are not a defense where the pedestrian does not have a reasonable alternative route to avoid the problem.
“Trivial defects” are generally changes in sidewalk elevations (raised slabs) under 3/4 of an inch. However, such defects can still cause liability in certain circumstances. For example, in areas known to be frequented by children, such as near schools, where skateboarding is common, even a ½ inch raise or less can result in predictable and serious injuries.
Consistency of complaints with the mechanism of injury generally requires the use of an expert in falls. These experts usually have degrees in safety engineering and sometimes in bio-mechanics, but all such competent experts have extensive experience in the science of how and why people fall and what injuries can be expected as a result of different traumas.
Municipalities and landowners have a duty of reasonable inspection and subsequent repair or warning, depending on the nature of the hazard. Where this duty is breached and an accident occurs, the victim has a possible lawsuit and should seek immediate representation by a good attorney who will (1) quickly have the area of the fall photographed and measured to preserve evidence as the walkway will usually be quickly repaired after a claim is filed, (2) preserve the victim’s shoes to show that the pedestrian was walking in a normal and responsible manner with due care for his or her own safety, and (3) make certain that the victim properly explains to his or her doctors the exact manner in which the body moved during the fall in conformity with the type of slip or trip.
