My daughter was injured riding a scooter on the sidewalk next to a neighbor’s driveway. She broke a leg. One of the sidewalk flags was about two inches above another, causing the accident. Someone told me that I cannot sue because my daughter was riding a scooter. Does she have a claim?
Navigating NYC Sidewalk Liability, Assumption of Risk, & The Special Use Doctrine
If your child was injured while riding a scooter on a raised sidewalk flag near a driveway, you may have been told she cannot recover because she “assumed the risk” by riding a scooter. That advice is legally incorrect. Under New York law, she does have a viable claim.
Evaluating a trip-and-fall on a broken municipal sidewalk cutout requires analyzing two core legal issues: the strict limits of the primary assumption of risk doctrine, and the liability-shifting rules under the NYC Administrative Code and the Special Use Doctrine.
The Purpose and Limits of Primary Assumption of Risk
In 1975, New York enacted CPLR Article 14-A, establishing a pure comparative fault regime. Under CPLR § 1411, an injured person’s own comparative fault no longer bars recovery entirely; it simply reduces awarded damages proportionately. However, the New York Court of Appeals preserved a narrow common-law exception: primary assumption of risk.
The legal purpose of primary assumption of risk is rooted in public policy. Organized sports and athletic pursuits carry inherent, unavoidable risks. To protect co-participants, coaches, and sports facility owners from “potentially crushing liability” that could discourage athletic activities, the law treats inherent sports risks as a complete “no-duty” bar to recovery rather than a comparative fault factor.
Why the Defense Fails on Public Sidewalks
The New York Court of Appeals drew a strict boundary in Custodi v. Town of Amherst, 20 N.Y.3d 83 (2012). The Court clarified that primary assumption of risk applies strictly to athletic and recreational pursuits taking place at designated sports venues. It does not extend to pedestrians traversing public streets or sidewalks—even if they are jogging, rollerblading, or riding a scooter.
Allowing property owners to claim that a child “assumed the risk” of a two-inch sidewalk flag defect would undermine a landowner’s duty to maintain safe premises and nullify CPLR § 1411.
- Primary assumption of risk is entirely inapplicable.
- Any alleged failure to spot an open-and-obvious sidewalk defect is evaluated purely as comparative negligence under CPLR § 1411. Comparative fault can reduce the recovery amount, but it does not dismiss the lawsuit as a matter of law.
Identifying the Defendants: Statutory Liability & Special Use
Determining who is legally responsible for a hazardous sidewalk condition in New York City requires stepping through the statutory liability rules:
- The Statutory Baseline (NYC Admin. Code § 7-210)
Under NYC Administrative Code § 7-210, liability for sidewalk defects shifted away from the municipality and onto the abutting private landowner. Commercial landowners and multi-family residential landlords must maintain abutting sidewalks in a reasonably safe condition. - The Residential Exemption & The “Pothole Law”
Section 7-210(b) creates an exemption for one-, two-, or three-family owner-occupied residential properties. If the accident occurs outside an exempt single-family home, statutory responsibility shifts back to the City of New York. However, holding the City liable requires filing a formal Notice of Claim within 90 days and satisfying the NYC “Pothole Law” (NYC Admin. Code § 7-201(c)(2)) by proving the City had at least 15 days prior written notice of the specific defect before the accident occurred—a hurdle that can prove fatal to a claim if written notice does not exist. - The “Special Use” Exception (Driveway Cutouts)
The residential exemption does not shield a homeowner if they derive a “special use” from that specific portion of the sidewalk. A driveway cutout constructed across a public sidewalk for private vehicular access is a classic special benefit (Kaufman v. Silver, 90 N.Y.2d 204). Under the Special Use Doctrine, a landowner who derives a private benefit from public sidewalk space retains an independent, common-law duty to maintain that specific area in a reasonably safe condition.
Conclusion: Who Should Be Sued?
Because critical facts—such as the exact property classification, municipal written notice records, and whether the two-inch raised flag fell strictly within the driveway’s zone of special use—must be fully vetted during litigation, the injured party should sue BOTH the City of New York AND the private homeowner.
- Claim Against the Homeowner. Plead that the driveway cutout constitutes a special use that pierces the § 7-210 residential exemption, imposing an independent common-law duty of care.
- Claim Against the City. Plead statutory liability under § 7-210(b) and satisfy municipal conditions precedent under § 7-201(c)(2).
Primary assumption of risk will not shield either defendant under Custodi. The court will evaluate the suit under standard premises liability principles. Any comparative fault on your daughter’s part is for the jury to weigh under CPLR § 1411.
If your child was injured on a defective sidewalk or driveway cutout, consulting an experienced Staten Island trip and fall lawyer can help protect your rights and guide you through the process of filing a claim against the responsible parties.