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?
Yes your daughter has a claim. There are two issues that your question raises. One issue is assumption of risk and the other is liability for sidewalk defects.
First, assumption of risk is a doctrine in the law that limits a defendant from liability when the injured party engages in a risky activity. In other words, when a person plays a sport (like football) in which there is a high probability of injury, then that person cannot bring a claim for damages when they are injured participating in that sport. Certainly, the defendant might argue that a scooter is dangerous and your daughter assumed the risk on injury by using a scooter on the sidewalk. However, the Court of Appeals has already addressed this issue. Custodi v Amherst, 20 NY3d 83, 957 NYS2d 268 (2012). (Rollerblader allowed to continue lawsuit against a homeowner for injuries sustained in a driveway.) As courts have noted, if a landowner uses assumption of risk to limit liability for cases while people traverse streets and sidewalks, then landowners would have a diminished duty to maintain their premises. Custodi v Amherst, 20 NY3d 83, 957 NYS2d 268 (2012). So your daughter will have a claim.
Responsibility for Sidewalk Defects
A prior post discussed liability for sidewalk defects. Since your daughter’s accident occurred on the sidewalk next to a driveway, the homeowner is responsible for the accident. Although you should file a claim against the City of New York as well to protect the claim, especially if there is any uncertainty about the exact location of the defect. As discussed in the prior post, the City is responsible to maintain sidewalks next to private homes. It is better to file a claim and later dismiss it, than to miss a statute of limitations deadline.
By James Santner, Esq.
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