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POLISH ATTORNEY NEW YORK

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PEDESTRIAN KNOCKDOWNS

A vehicle driven by an owner’s friend struck a parking sign located on a sidewalk adjacent to a city street. The post and attached a sign detached from the base in which the post had been secured and launched into the air, striking a pedestrian standing on the sidewalk. The sign and post struck the woman in the back, causing her to sustain a catastrophic spinal injury.

 

Pursuant to the agreement with the City, the county was responsible for the City's traffic engineering services, including maintenance of the parking sign that struck plaintiff. In 1999, the County had reinstalled the parking sign, after it was reported to be "bent over," by attaching the sign to a channel post with bolts and attaching that to a channel base post, leaving approximately one foot of the base post visible above the ground. Once reinstalled, the parking sign remained in place until the date of the subject accident.

 

The injured woman filed a suit against both an owner of the vehicle and the County, alleging, that the County, pursuant to its agreement with the City, had a duty to exercise due care in using the proper materials for the sign and its installation, and in placing the sign post at a proper depth in the ground and at a proper distance from the roadway, and that the County breached that duty, thereby proximately causing plaintiff's injuries. The owner of the vehicle agreed that she was liable to plaintiff as a result of the driver's negligence in operating the vehicle, i.e., for apportionment of fault. The County filed a motion for summary judgment, contending that it did not owe a duty to plaintiff and thus plaintiff did not establish her cause of action. The lower court denied the motion. Defendant appealed.

 

On appeal, the Second Department upheld the decision of the lower court. The Second Department rejected the lower court’s contention that it does not owe a duty of care to plaintiff. The Court explained that a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party," i.e., a person who is not a party to the contract. The Court pointed out, however, that an exception applies where the contracting party has "entirely displaced the other party's duty to maintain the premises safely'". The Court held that the County's duty to plaintiff arose from its comprehensive agreement with the City and the County has entirely displaced the City in fulfilling the City's duty to be responsible for traffic signs. Specifically, the County had a duty to properly reinstall the sign in 1999, including using proper materials, installing the sign's post at the appropriate depth in the ground on a proper base, and placing the sign at the required distance from the roadway. Moreover, that duty to pedestrians, reasonably within the zone and the contemplation of the intended traffic engineering services encompassed by the County's agreement with the City.

 

The Second Department also rejected the County's contention that even assuming it was negligent, its negligence was not a proximate cause of plaintiff's injuries. The Court explained that it is well settled that there may be more than one proximate cause of an accident. The Court held that there were triable issues of fact regarding the proximate cause of the accident. Defendant and plaintiff submitted contrary expert opinions. The plaintiff’s expert contended that defendant improperly installed a breakaway signpost and that the accident would not have occurred but for that improper installation. He also opined that the County's negligence in installing the sign was a substantial factor in causing the plaintiff's injuries. Specifically, he opined that, had the sign been properly placed, it would not have struck plaintiff because its placement one foot above the ground created a risk that the sign would become a high-flying projectile if hit, rather than bending or projecting closer to the ground.

 

The Second Department also held that the vehicle’s owner stipulation did not purport to render the owner completely liable so as to exclude the County’s liability.

Therefore, the Second Department upheld the lower court’s decision and denied the defendant’s motion for summary judgment.