A TRIP ON THE SIDEWALK MAY RESULT IN A STROLL THROUGH THE COURTHOUSE!
A recent judicial decision
reports of the loving relationship between Ann and her dog, B.J., a poodle,
four years of age, weighing approximately 80 pounds. Ann apparently had a history of walking her
dog several times a day without incident.
Until the day the walk was with incident.
On the day of injury, Ann was
taking B.J. for a walk, on a leash, and passed in front of a condominium
complex near a similar condominium complex in which she resided. The weather was reported dry and clear, with
the summer sun shining brightly overhead.
The judicial opinion advises:
“[Ann’s] walk ended
when one of her feet came in contact with a upturned,
jagged piece of sidewalk, causing her to lose her balance and fall, face first,
to the sidewalk. After her fall, she
noticed that there was grass growing in this break in the sidewalk.
The fall knocked
the wind out of her. In the fall, [she]
fractured her right wrist, fractured and lacerated her left knee, broke her
fourth and fifth ribs, and sustained a large hematoma
in the area of her right breast. She
sought medical attention for her injuries, eventually surgery to repair her
left knee. During her recovery from the
fall, she contracted pneumonia. At the
time of trial, she was unable to walk more than a block without pain, and was
using a wheelchair to go longer distances.”
The decision does not report, for
those who might have interest, any difficulty encountered by B.J.
At the time of trial, it came out
that the gardener for the condominium property adjacent to the “sidewalk
‘watered the the vegetation on both sides of
sidewalk, utilizing . . . sprinklers . . . .
[and] was aware of the break in the sidewalk and
recalled that it had been there for a few years prior to the date of [her]
Ann’s attorney apparently
retained the services of a civil engineer and general contractor to testify as
an expert witness at the time of trial.
The expert testified that the sidewalk defect had been caused by the
growth of a tree root under the sidewalk which “had been enhanced by the
fertilizing, watering and trimming of the trees” by the gardener for the owner
of the condominium property.
The appellate court, in reviewing
the matter, distinguished this factual situation from the situation in which an
offending tree is owned and routinely maintained by the City. In this situation, the condominium property
and maintained all of the trees and vegetation in the area, on both sides of
the sidewalk, had installed sprinklers on both sides of that walkway, and
watered and trimmed the trees which grew the roots which caused the sidewalk to
be uplifted and crack, presenting the danger which befell [Ann].”
The appellate court thus affirmed
judgment for Ann.
The moral of
the story? While taking the time
to smell the flowers, keep your eye on the pathway!
[This column is intended to provide general information only and
is not intended to provide specific legal advice; if you have a
specific question regarding the law, you should contact an
attorney of your choice. Suggestions for topics to be discussed
in this column are welcome.]
Reprinted from Fabricare
Myles M. Mattenson © 2008