Wade Clark Mulcahy LLP

Polibio Abreu tripped and fell on a sidewalk adjacent to 129 Duane Condominium.  His left foot contacted an uneven sidewalk flag, over which he tripped and fell, causing injuries that required acervical fusion.  At the time that he fell, Abreu testified that he was looking straight ahead, his hands were empty, and his cell phone was in his pocket. He also alleged that the sidewalk was dimly lit at that time.

The property manager of 129 Duane testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag. He further testified that the adjoining property had redone their sidewalk and he thought that the condition needed to be repaired by the adjoining property, 200 Church Street Associates LLC.

The court noted that as a general matter, 129 Duane has a “non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” The court found that it was undisputed that the sidewalk flag was in front of 129 Duane’s property. Even still, 200 Church’s potential responsibility for the sidewalk maintenance did not create an issue of fact regarding 129 Duane’s failure to maintain the sidewalk.

Abreu produced a photograph with a ruler showing the height differential to be more than one-half inch deep. The court deemed this differential to be a “substantial defect” as defined by the Administrative Code. A “substantial defect,” is not so easily defined. Therefore, to have this example is helpful for our analysis when assessing the liability in other sidewalk cases.

Although 129 Duane argued that the defect was “open and obvious,” the court found that the Defendant was unable to demonstrate that the defect was open and obvious in a manner that should preclude liability.  The photographs provided were taken during the day and Abreu testified that the lighting was dim when he tripped. The court found that even if they did find the defect to be open and obvious, it would only relieve the 129 Duane of its duty to warn of the defect and not preclude liability for allowing the defect in the first place.

This case stands for the proposition that when making an argument that a defect is open and obvious, we must also establish the property owner was not liable for the defect in the first place. Because even though the defect may be open and obvious, if a property owner knew of the defect and failed to remedy it, they still may be liable.