Defective Premises

premises liability A property owner is responsible to maintain their property in a safe and proper condition. Many lawsuits result from a property owner’s failure to maintain their property. This can come in many forms, i.e., broken and cracked sidewalks, lifted sidewalk from tree roots, failure to place handrails by steps, steps that are built with improper rises, etc.

If the property owner owns the sidewalk, driveway, pathways leading to the front door, etc, they are responsible to maintain the premises in a safe and maintained condition. This includes the exterior and interior of the premises. Having to maintain the interior and exterior of property applies to all property including commercial or rental properties. In all cases, the land owner had the same responsibility to maintain safe passage for pedestrians.

Many cases our law firm comes across arise out of projects done on the land owner’s premises which do not conform to the code of the state they are in. For example, there are building codes to determine step heights (how high or low a step should be). There are also building codes for handrails. A handrail must be a certain width from the wall to allow a person to be able to grip it. For example, if someone is unsteady and needs a handrail to steady themself, and the handrail is constructed too close to the wall, then that person will be unable to hold the handrail. This could cause the person to lose their balance, fall down the stairs, and suffer severe injuries. Therefore, should any landowner need to replace handrails, whether it be commercial, rental, or private property, it is imperative that the handrails, or any other construction repairs for that matter, be done according to the building codes of that state.

Many municipalities that own the sidewalk pass statutes/laws that put the burden to maintain the property on the adjoining landowner. When there is no adjoining landowner, the municipality owns the adjoining property or has gained ownership by a tax proceeding, the injured party has additional duties to show notice to the property owner (the municipality) by a prior written notice unless the municipalities created the condition that caused the injury (i.e., digging up the sidewalk, etc.). This prior written notice must have been filed with the municipality prior to the commencing a lawsuit. You can find out about prior written notice by filing a Freedom of Information request for prior written notice (all municipalities must maintain written notices of defects served on them). Lawsuits against a municipality for defective premises have a shorter time to commence the lawsuit. You only have ninety (90) days from the date of the accident to file a “Notice of Claim”. This must be in written form setting forth the date, time, place and list the defect and the injuries sustained. This is required before a lawsuit can be commenced. The municipality also has a right after being served with the Notice of Claim to perform a 50-h hearing (a deposition of the injured person) as to how the accident happened and the injuries sustained.

The injured party through his/her attorney must allow thirty (30) days to pass after the 50-h hearing before commencing a lawsuit. All these things must be done as a “condition precedent” (done before) a lawsuit can be commenced against a municipality. When the municipality property is in front of a private adjoining landowner, the attorney must protect the injured party by filing a Notice of Claim and a 50-h hearing before suing both the municipality and the adjoining landowner.

Another defense that a property owner has to these lawsuits is called a “trivial defect”. The defect that causes a person to be injured is so small or inconsequential that the law does not require it to be fixed (i.e., raised sidewalk less than one inch (1”).

An attorney who handles defective premises cases must have full knowledge as to who the property owner is and the appropriate shorten time limits and procedures needed to be held. The Law Firm of Dominick J. Robustelli & Associates, PLLC knows how to protect injured people against municipalities and landowners.

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