Testimony before the Transportation Committee
New York City Council

Sidewalk Legislation
Intro 39, Intro 41, Intro 192, Intro 193, Intro 242, Intro 295, Intro 141

Tuesday November 12, 2002
Committee Room - City Hall

Good morning Chairman Liu and Members of the Transportation Committee. Thank you for the opportunity to appear before the Transportation Committee today.

Over the last year there has been much public discussion on "Sidewalk Lawsuits". This type of claim, historically the most common personal injury claim filed against New York City, includes personal injuries for "trip and fall" accidents resulting from sidewalk defects, as well as accidents from falls on snow and ice-covered public sidewalks.

The Prior Written Notice ("PWN") Law, enacted by the City Council in 1979, provides that the City is liable for a sidewalk or roadway claim only if the location where the incident occurred had been reported to the Department of Transportation, in writing, at least 15 days before the claimed incident. The law was intended to strike a balance between the City's responsibility for the twelve thousand miles of sidewalk it currently maintains, and any injured parties.

There is a growing consensus that the Prior Written Notice Law has failed to produce the balancing of interests the City Council originally sought to create. The experience of the last two decades has made clear that changes must be sought that preserve the interests of injured pedestrians in bringing suit, provide the City meaningful notice and opportunity to correct well-delineated defects, and protect property owners in any change to their existing responsibility for abutting sidewalks.

The Comptroller's Claims and Adjudication Department, responsible under the City Charter for settling and adjusting claims against the City of New York, projects that in Fiscal Year 2002 approximately 53 million dollars of the 546 million dollars paid out in settlements and judgments are related to trip and fall cases. That amount is based on 2,652 total settlements and judgments of which 1,410 settlements, more than half, was negotiated by this Office through its Sidewalk Teams, a record number for this Department. The settlements negotiated by our Sidewalk Teams averaged less than 7,000 dollars per sidewalk claim. The overall average for sidewalk claims settlements and judgments have dropped from 27,000 dollars in FY '97 to approximately 20,000 dollars in FY '02.

Although the number of new sidewalk claims has steadily declined from a record high of 4,520 in FY'96, to 3267 in FY2002, sidewalk claims still rank as the number one claim type filed. While the number of new claims filed has been decreasing, the total amounts paid out have increased steadily. In FY'96 48.4 million dollars was paid in sidewalk settlements and judgments, rising to a high of 76.8 million dollars in 2001. Although the number of new claims is declining, and the average dollar amount per settlement or judgment is also declining, the total dollars paid out is rising because of the growing number of backlog claims. Please note that a significant decline appears to have occurred in FY'02 where our Office estimates that 53 million dollars will be paid out - most likely related to the events of September 11.

Prior to 1997, the Comptroller's Office rarely settled claims involving personal injury. Unlike most insurers, the City settled virtually all personal injury claims after litigation commenced. This resulted in significant increases in the City's litigation backlog (which reached approximately 70,000) cases and the doubling of overall claim expenses since 1991. As a result of the 1997 Price Waterhouse Claims and Litigation Practices Study recommendations, and funding received from the City Council, the Comptroller's Office created a pilot program focusing exclusively on claims arising from injuries allegedly sustained because of defective sidewalks. We believe this program has been responsible for some of the drop experienced in the filing of new claims and the average dollar amounts paid out. As a result of the pilot program, the time needed to investigate a claim has decreased sharply and allowed the City to make offers of settlement for meritorious claims prior to the start of expensive litigation.

The early expectation that notice would be provided by concerned citizens and community groups was incorrect, as most "notice" is provided by the Big Apple Pothole and Sidewalk Protection Corporation, more commonly referred to as "Big Apple", a nonprofit corporation established by the New York State Trial Lawyers Association. Big Apple's primary purpose is to provide notice of defects to the Department of Transportation. Big Apple's surveyors walk the City's sidewalks in search of defects and record defects on pre-existing maps. Upon completion, the maps are delivered to DOT, thereby satisfying the technical requirement of "Prior Written Notice". Big Apple has the entire City mapped yearly, resulting in thousands of such maps, each superceding the previously filed map, with hundreds of thousands of symbols, being delivered to the DOT.

Big Apple maintains its operations by charging fees to lawyers requesting a search of its maps to see if the City may have received prior notice of a particular sidewalk defect. Additional fees are charged for providing copies of maps and for providing witnesses to explain the maps and the symbols utilized. This current system creates a great incentive for Big Apple to list as many defects as possible with no practical method for the City to verify each and every defect listed.

Should the City fail to repair a "noticed" defect within 15 days, the City becomes liable for any injury occurring as a result of a fall "proximately caused" by that defect. Further, the lack of definition of what constitutes a "defect", "danger", or "obstruction" in the Prior Written Notice Law has undermined the intent of the statute and at times defied common sense expectations of what any reasonable person could expect the condition of a city sidewalk to be in, or an individual's own responsibility to exercise care when walking on a City street.

Finally, in the lawsuit process, Big Apple's maps have been judicially held to serve as legally sufficient written notice to comply with the technical requirements of the current law. That technical notice, coupled with some injury, is sufficient to establish the City's liability, without more evidence that a defect actually existed of which the City received adequate notice.

The experience of the Comptroller's Office in processing sidewalk claims leads me to make the following recommendations on areas for Council consideration.

• 1. Amending to Prior Written Notice statute to require greater specificity as to location and defect
  

The written notice should provide the DOT with a specific location by street address, and by reference to a fixed structure (including, but not limited to, a fire hydrant, street light or building entrance). The notice should also provide a detailed description of the defective, unsafe, dangerous or obstructed condition in sufficient detail to enable the DOT to locate the condition with reasonable diligence. The intent is to rebalance the interests of the City and injured parties. As opposed to the current imprecise and voluminous filing of information, the notice should contain sufficiently clear detail while not requiring exacting measurements, but provide fair notice so that the DOT can locate and repair the defect with reasonable diligence. Should the DOT fail to exercise reasonable diligence, the City will continue to face liability.

• 2. Amending the Prior Written Notice statute to provide the DOT additional time in which to make repairs

A reasonable period of time in which to act should be a part of the balance sought. Even under the most efficient management of time and personnel, the current fifteen day time period may be unattainable, or close to meaningless, given the ability of the Big Apple Map Company to deliver a steady stream of large numbers of maps, the 12,000 miles of sidewalks, and the costs involved in making repairs. The new time period should be sufficient to allow the DOT time to make repairs, but not so long that DOT is not properly motivated to act aggressively in making such repairs.

• 3. Increasing Abutting Property Owner Liability
  

Property owners are currently responsible for removing ice and snow conditions from the sidewalk abutting their property and for generally maintaining the condition of the sidewalk. While failure to remove the condition may subject the property owner to a fine, the owner is not liable for any injury "caused" by the defective condition. As per the Administrative Code, the current civil penalty for failure to remove the condition within four hours is between ten dollars and one hundred and fifty dollars.

I support a change to the current system. Owners are in the best position to maintain the sidewalks abutting their property. However, any change to owner liability should exempt 1, 2, and 3 family owner-occupied homeowners.

Consideration may also be given to deeming the City secondarily liable, provided that the City is not made a party to every lawsuit filed. Should property owner fail to have sufficient assets, the City will assume the excess liability. Other suggestions worth examining include providing property owners with rebates, during a specified window of opportunity, within prescribed dollar limits, for sidewalk repairs in exchange for the transfer of liability; and increasing fines/penalties for homeowners who do not remove snow and ice conditions from their abutting property, within specified timeframes; or fail to generally maintain the sidewalks as already required by NYC Administrative Code.

In conclusion, there is no question that the Prior Written Notice law requires more specificity as to location and severity of defect. DOT requires additional time in which to make repairs of which it has received appropriate notice. Abutting property owners, except for 1, 2, or 3 family owner-occupied property owners, should become liable for slip and falls occurring on their abutting sidewalks.

I commend this Committee for examining this important issue and legislative alternatives in the hopes of reducing costs to the City and, most importantly, reducing the number of injuries that occur.

Thank you for the opportunity to address this Committee today.