Kashawn Yarborough v. City of New York

Decided Feb. 7, 2008 (decision)

SLIP/TRIP & FALL/NOTICE OF CONDITION UNDER POTHOLE LAW

FACTS: Plaintiff Yarborough tripped and fell in a pothole on a Brooklyn street. Plaintiff brought suit against the City to recover for his injuries.

The City did not have any notice of the alleged defective condition. A City Department of Transportation employee testified that no complaints or maintenance and repair records existed for the location of plaintiff’s fall for two years prior and one year subsequent to the date of plaintiff’s fall. A City Department of Environmental Protection employee provided an affidavit which stated that no complaints or records existed for the same time period.

Plaintiff’s expert engineer testified that the City had negligently undertaken patching repairs to the subject location. First, the plaintiff’s engineer testified that the patching was not flush with the surrounding, existing pavement and therefore created a “secondary tripping hazard.” Second, the plaintiff’s engineer concluded that because the patch was not tack coated with liquid asphalt, water was allowed to enter the joint between the patch and the surrounding asphalt causing erosion. The plaintiff’s engineer also stated that “wear, tear and environmental factors hastened the deterioration of the patch.”

PROCEDURAL HISTORY: The City moved for summary judgment. The Supreme Court denied the City’s motion finding that a question of fact existed on the issue of whether the City was responsible for creating the defective condition.

The Appellate Division reversed and dismissed the complaint because the plaintiff failed to submit evidence that the repair immediately created the condition that caused plaintiff’s accident.

ISSUE: Where the City does not have notice of a pothole as required by the Pothole Law, can the plaintiff survive a motion for summary judgment by the City when the plaintiff’s expert engineer testifies that the City created the pothole condition by failing to properly patch and seal the pothole and that wear, tear and environmental factors contributed to the creation of the pothole?

HOLDING: In a unanimous decision, the Court of Appeals affirmed the decision of the Appellate Division granting summary judgment to the City and dismissing the plaintiff’s complaint. The Court held that the “plaintiff failed to raise a triable question of fact as to whether the City created a defective condition within the meaning of the exception, which requires that the affirmative negligence of the City immediately result in the existence of a dangerous condition.”

ANALYSIS: The Pothole Law (Administrative Code of the City of NY §7-201(c)(2)) requires that the City must have prior written notice of the condition in order to pursue a claim against the City. Where the City makes a showing that it did not receive prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of the two exceptions to the requirement of prior written notice under the Pothole Law. The exceptions are: (1) that the municipality affirmatively created the defect through an act of negligence, or (2) that a special use resulted in a special benefit to the locality. (See Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 (1999)). The first exception, referred to as the “affirmative negligence exception”, was at issue here. The “affirmative negligence exception” is limited to work by the City that immediately creates a dangerous condition. (See Oboler v. City of New York, 8 N.Y.3d 888, 889 (2007)).

The Court acknowledged that the deposition testimony of the City Department of Transportation employee and the affidavit of the City Department of Environmental Protection employee adequately established that the City had not received written notice of the alleged defective condition and, as a result, the burden shifted to the plaintiff to demonstrate the applicability of one of the exceptions. The Court found that the plaintiff did not adequately demonstrate the applicability of the “affirmative negligence exception.” The Court does not directly state so in their decision , but it appears that the amount of time that elapsed between the City’s repair of the pothole in question and plaintiff’s injury was more than could be considered “immediate” under the “affirmative negligence exception.” It also appears that the testimony of plaintiff's own expert worked against him. The Court stated that “[e]ven assuming the City performed the negligent pothole repair, plaintiff’s expert found that the deterioration of the asphalt patch—the condition that caused plaintiff’s injury—developed over time with environmental wear and tear.”