I was taking a walk in a Long Island township. I tripped and fell on broken pavement near a railroad crossing. My leg was badly injured. An attorney I hired told me that I have no case. A prior notice law covers liability cases against the township. There is no prior written notice of the defect which caused my fall. Is there anything I can do to bring a claim?
You might be able to bring a claim.
In a prior post, I explained trip and fall cases against the city of New York cannot be brought for a defect on a sidewalk or street unless the City has prior written notice of the defect which caused the accident. These laws in New York State do not just cover New York City, but they also cover smaller communities as well. See Township Law § 65-a and Village Law § 6-628. So your attorney correctly advised you that you would not be able to sue the municipality where your accident occurred unless that township had received prior written notice of the defect. Your attorney could easily have found out if the town received prior written notice of the defect which caused your accident by conducting a Freedom of Information Law search through the township. So I would believe the attorney that you have no case against the town. However, there still may be another way you could make a claim.
Claim Against the Railroad
In your question, you mentioned your accident happened near a railroad crossing. This is significant. Under the Railroad Law, the railroad, which leases the property near the railroad crossing, has a duty to maintain that area. Specifically the Railroad Law requires a railroad company maintain an area 16 feet wide near the railroad crossing on the street. Railroad Law § 21.
So even though the township may actually own all the streets, the railroad company has an obligation to maintain the area around a railroad crossing which intersect a street. You still must prove that the railroad had notice of the particular defect. However, unlike the township, the railroad company does not have to have prior written notice of the defect. But, given the size and location of the defect, you might prove that the railroad company should have known of the defect. You may need to contact an expert, but a large crack in pavement does not occur overnight. So you may be able to prove that the railroad should have known of this defect. Since the railroad company had a duty to maintain the area, it should have remedied the defect to make it safe for the general public. See Reyes v CSX Transp., Inc., 19 AD3d 198, 796 NYS2d 606 (1st Dept 2005). See also Harriman v New York, C. & St. L.R. Co., 253 NY 398, 171 NE 686 (1930). Thus, you may have a claim against the railroad company.
By James Santner, Esq.
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