Pothole Map Inadequate for Lawsuits, Court Finds

By Sewell Chan

In a blow to the New York State Trial Lawyers Association, the state’s highest court ruled on Thursday that the association’s famous pothole map was not sufficiently clear and therefore did not give two injured people the right to win civil judgments against New York City under the city’s Pothole Law.

The Pothole Law — passed in 1979 to make it harder for people to sue — protects the city from liability for injuries to people who trip or fall on sidewalks that are “out of repair, unsafe, dangerous or obstructed,” unless a written notice of the defect has been provided to the city’s Department of Transportation at least 15 days before the accident. Previously, the injured person only had to show, usually through witnesses, that the crack or hole or protrusion had been there long enough for the city to be able to fix it.

In response, in 1982, the trial lawyers set up the Big Apple Pothole and Sidewalk Protection Committee, which hires workers to scour the city’s nearly 10,000 miles of streets and document potholes and other defects.

The committee started to supply thousands of maps to the city, documenting hundreds of thousands of purported defects. “The city initially refused to accept the maps as evidence of the required notice, but the lawyers sued — what else? — and won,” Joseph P. Fried wrote in The Times in 1993.

The issue is important because the city pays tens of millions of dollars a year in personal-injury claims. Trial lawyers typically get a third or more of the judgments.

But now, the adequacy of the Big Apple maps is in question.

On Thursday, in a pair of cases, the Court of Appeals, New York’s highest court, ruled that the map was “not sufficient notice” under the Pothole Law.

The map uses coded symbols to represent defects. “For example, a straight line is used for a raised or uneven portion of a sidewalk, a circle for a hole or hazardous depression, a line with a triangle at each end for an extended section of cracks and holes in a sidewalk, and so forth,” Judge Robert S. Smith wrote in his opinion for the court’s majority.

In one case, that of a man named Pasquale D’Onofrio, the place he fell was indicated on the map with a straight line. “It is not completely clear how the accident happened, but there is no evidence that Mr. D’Onofrio walked across a raised or uneven portion of a sidewalk, even on the assumption that the grating is part of the sidewalk,” Judge Smith wrote. “A photograph of the area where he fell
does not show any surface irregularity or elevation.”

A jury ruled in Mr. D’Onofrio’s favor, but a lower court judge set aside the verdict. The Court of Appeals agreed.

The second case was brought by Ida Shaperonovitch, who tripped over an elevation on a sidewalk. But the map contained a symbol that was utterly unclear, Judge Smith wrote:

No unadorned straight line, the symbol for a raised portion of the sidewalk, appears on the Big Apple map at the relevant location. The Shaperonovitch plaintiffs rely on a symbol that does appear there: it is a line with a diamond at one end and a mark at the other that has been variously described as a poorly drawn X, the Hebrew letter shin, or a pitchfork without the handle. No symbol resembling this appears in the legend to the map. A Big Apple employee, called to testify by the City, acknowledged that Big Apple “did not notify the City of any raise” in the location where Ms. Shaperonovitch fell.

Judge Theodore T. Jones Jr., who is one of seven nominees for the position of chief judge that is being vacated by Judith S. Kaye, wrote in a dissenting opinion:

Mapping hazards is hardly an exact science. Although the symbols on the Big Apple maps were not designed to give notice of every unique defect found on the sidewalks and roads of New York City, each symbol on the map legend represents a general category of potentially hazardous defects (e.g., “Hole or hazardous depression,” “Raised or uneven portion of sidewalk,” “Pothole or other hazard”).

Mr. D’Onofrio’s injury, Judge Jones wrote, was caused by the “movement of a loose metal grating” along with some “broken cement alongside the edge of that grating.” The map’s symbol, signifying a “raised or uneven portion of sidewalk,” was not so far off, the judge wrote: “In my view, the gap created from the crumbling cement alongside the grating was an irregularity in elevation and could reasonably have been included under the category of “uneven sidewalk” — it was at least a close call.”

And in Ms. Shaperonovitch’s case, Judge Jones wrote that the mark, however ambiguous, “gives notice to the City of some defect — rather than no defect at all — at that location.” He added, “As to which specific defects were depicted, the symbols could be reasonably interpreted in several ways.”

Comments are no longer being accepted.

Peter 10024 December 18, 2008 · 7:31 pm

I hope this disqualifies Judge Jones for promotion to Chief Judge.

Bubster December 18, 2008 · 7:33 pm

Time to get rid of sidewalk pothole compesation altogether. It’s simply a way to game the system. A person who can walk up one step can also step over the worst sidewalk hole, crack, or raised edge. At a walking pace once can easily walk around something on the sidewalk one doesn’t want to cross. Only the legally blind should be allowed to collect.
New York has far too many scams going. It’s time to subtract one.

Street, rather than sidewalk pothole compensation makes sense; one pays gasoline taxes to keep the streets somewhat repaired and one can’t always stop or swerve around a large one without creating a collision. One buys a passenger car rather than an SUV partly on faith that you don’t need on off-road vehicle to drive down Main Street. It’s also unlikely to be gamed: the difficulty of staging a fake claim and possibility of jail time outweigh the small payout; scam artists go for personal injury rackets where the risk/payoff is 100 times better.

George December 18, 2008 · 7:37 pm

Oh well, back to the drawing board,,,,

Ravi Batra December 18, 2008 · 11:55 pm

Judge Robert Smith’s Precise Correctness May Be Less “Just” Than Judge Jones’ Common Sense Holding, As The Latter Makes For A Safer City.

Lets admit that reasonable minds can differ, so a civil debate ought to occur. Notice or ignore, that is the question. A people’s city can either get some warning and fix the city property, or a politicians’ city can let it remain in disrepair and allow its citizens to be unnecessarily exposed to injury, suffer same, and then have to fight tooth and nail to get a fraction of compensation; after all it is taxpayer-paid and not a bonanza. But, wait a minute, it was politician-mismanagement-caused!

I say let the people hold their government accountable everytime there is a tort payment, and ask who didn’t do their job right that a fellow citizen was hurt by a neglectful government. In this era of crane collapses, and inspectors being indicted and facing jail time, maybe Judge Jones is exactly right—holding the city accountable for defects it ought to have fixed within a reasonable time after it knew something was amiss!

It is a policy debate: is government accountable to the people or is it a government above the people.

Now, a look at the actual practice may be informative. By the way, I’m no fan of city sidewalk lawsuits, as the city, when a defendant, delays suits with excessive delays and gets away with it. Indeed, the city even gets treated real special in court and gets its own “City Part,” where delays are “just” ok. Maybe, we should have an Allstate Insurance part, a Progessive Insurance Part, a Chubb Insurance part. That way the court can take into account the vacation schedules of underwriters and the rate of return for insurance companies and its effect on defense attorney staffing, such that the insuarnce company can only afford one lawyer per state. Wouldn’t that be a beauty? Then, every lawsuit would grind into 20-year odyssey, and save a lot of money for the insurance companies.

Whenever we are asked to sue the city, it is my desire to decline the case; after all, it’s a torture. If a case is indeed filed, we prefer to be in federal court, where, generally, the city gets treated a lot less special and is held to a standard most other private entities are held to.

One such case we have in federal court is about alleged horrific behavior by city employees in that infamous “Building G,” a psych ward of Kings County Hospital. It should be remembered that the Constitution is at its weakest in such a place because witnesses in a psych ward are naturally “crazy” and not credible; sort of a rape victim being re-raped in court by the defense. Is this what we want of our government, to try to escape responibility, or to set the standard of care and truthfulness that makes folks proud to be New Yorkers. I prefer the latter.

Just a thought….

Incidentally, both Judge Robert Smith and Judge Theodore Jones have intellects of the highest order, and all New Yorkers ought to be proud of them both! Perhaps, most subway users will remember that it was Judge Theodore Jones who ended the subway strike by holding the union strictly accountable under New York’s Taylor Law that forbids public employees from striking, after all, public employees are held, like Hebrew National, to a higher standard. (Obviously, given this pothole holding, not for sidewwalk defects).

Dated: 12/18/08
/s/
Ravi Batra

AN December 19, 2008 · 8:25 am

Why can’t people just watch where they are walking. Why is it always someone else’s fault. This is nothing but a trial lawyer’s form of lotto.

EJ December 19, 2008 · 9:11 am

They had a good run while it lasted.

Having worked for a personal injury firm, I can say that tThe courts are frankly already too overburdened to deal with lawsuits over every minor crack and crevice in the pavement. Cases where the defect is major, and the resulting injury is severe are exceedingly rare.

Matt, Brooklyn December 19, 2008 · 10:03 am

It’s easy to scapegoat trial lawyers.

But try and put a face on any of these nameless victims you are deriding.

Imagine it was your mother or grandmother who broke her leg because absentee landlords or slack City employees were too cheap or too lazy to repair a known hazard. And then Mommy gets stuck paying for her medical bills, missing work and income, because of legal parsing over symbols — all of which represent a hazard of some sort.

Is that justice? Yes, if you define justice letting government and big companies off the hook for wrongful acts, at the very large personal expense of real live people.

Without the civil justice system and the threat of penalties, we wouldn’t have seat belts.

Like big companies, governments choose financial efficiency over safety. The only way to make them choose safety is to make their inaction a potentially costly consequence.

– Matt, Broooklyn

Thomas J. Hillgardner December 22, 2008 · 10:43 am

This is a tempest in a teapot and the remedy is simple given the advances in digital technology since the Big Apple Pothole Company first was organized. I will wager that within one year the Big Apple Pothole maps will be available on line with a point and click feature that will access a digital photograph of the site. It is absurd that the judges are left to ponder whether notice to the City was sufficient based on a coded marking on a map when a digital photograph of the sidewalk defect is not available to them or the City.

Sure there are people scamming the system. Jail them. But do not deny compensation to those who deserve it or encourage the City to be more negligent than it already is.