Mom tripped and fell on sidewalk

[spodigas]

What is the name of your state? California

My mother was walking out of a municipally owned parking garage. She fell, was taken by ambulance to the hospital by paramedics. The injuries were quite extensive and resulted in surgery and a hospital stay.

She tripped on an approximately 1-1/2" crack in the side walk that had been raised about an inch. I took some pictures of the area the next day. I went back a few days later and the area had been temporarily repaired with asphalt. The side walk was uplifted in other locations and sidewalk grinding had been done in a few places. It seems the town knew of the issue.

My question: Is the municipality liable for the injuries? She will need physical therapy, dental work and probably some live-in help.

 

[zddoodah]

Likely, no.

Governmental entities are generally immune from suit unless they consent to being sued by law. In California, one of the exceptions to governmental immunity is for personal injury claims. However, your mother would have to prove that some negligence occurred. That would require proving not only knowledge of the dangerous condition but also a failure to take reasonable measures to warn people about or remedy the condition. ADDITIONALLY, discretionary acts - such as filling potholes and fixing cracks in sidewalks - are generally an exception to the exception. On top of that, your mother will have to deal with comparative negligence. It sounds like this is the sort of thing she could have noticed and avoided had she been paying attention. In California, even if the defendant is liable for negligence, the plaintiff's recovery will be reduced if her own negligence contributed to the injuries.

Your mother can consult with a local personal injury attorney. Submitting a particular notice pursuant to Government Code section 910, et seq. is a prerequisite to filing suit against a governmental entity, and there is a very short time limit for doing this.

Keep in mind also that an attorney will receive a percentage of any recovery (typically 25-40%), and her health insurer will be subrogated to any recovery. Subrogated means that, if her insurer paid for her medical treatment, it will be entitled to reimbursement of the amounts paid out of any recovery.

 

[adjusterjack]

I add that she should seek an attorney who has a track record of SUCCESSFULY winning settlements and awards from that municipality. Not one who says he can do it, but one who can show that he has done it often so his reputation precedes him.

 

[Zigner]

One additional bit of info/advice: she has a limited amount of time in which to file a claim. I believe it's six months. She cannot dawdle.

Edit: It would be better for me to say I was reinforcing what @zddoodah mentioned about the limit.

 

[Taxing Matters]

I add that she should seek an attorney who has a track record of SUCCESSFULY winning settlements and awards from that municipality. Not one who says he can do it, but one who can show that he has done it often so his reputation precedes him.

That's a tall order unless the municipality involved is rather large. Smaller governmental don't get sued all that often and the times they do get sued the lawyers are often different on each case. Finding someone with a lot of settlements with THAT PARTICULAR MUNICIPALITY may end up being a wild goose chase. Bear in mind that the number of settlements doesn't tell you anything other than the parties settled. It does not mean the settlements were all client favorable results. The settlement could have resulted in the client a very small fraction of what he or she may have received with another attorney. Because of the confidentiality provisions of most settlements measuring just how good the settlement may be impossible. Note too, that an attorney new to this area of practice or new to the area may be excellent but simply hasn't had the time to build favorable online reviews/word of mouth referrals. In other words, just asking for settlement numbers to gauge whom to hire is, IMO, not the most effective way to pick a lawyer. It's helpful, of course, if you can get good information about the performance on past cases, but shouldn't be the only thing a prospective client takes into account when picking a lawyer.

 

[quincy]

It is important to note that any claim made against the municipality must be filed directly with the municipality first and not filed in a court. A lawsuit filed in court would follow a claim submitted to the municipality, if a lawsuit is to be pursued.

 

[Taxing Matters]

She tripped on an approximately 1-1/2" crack in the side walk that had been raised about an inch. I took some pictures of the area the next day. I went back a few days later and the area had been temporarily repaired with asphalt. The side walk was uplifted in other locations and sidewalk grinding had been done in a few places. It seems the town knew of the issue.

A couple of comments on this. First, there are not enough facts here to determine with any certainty to what extent the town may be liable to her for the injuries she suffered. While municipalities are typically not shielded from lawsuit for personal injury claims she still bears the burden of proving the city was negligent and that it was that negligence that was the cause of her injuries. She also needs to prove the extend of the injuries.

The fact that there was a crack doesn't automatically make the city responsible. The city also needed to know or should have known of the crack and that it posed a danger to others. If the crack was relatively new and the city hadn't had time yet to inspect it and learn of the problem (and hadn't had complaints about it) then the city likely wouldn't be liable for her injuries.

However, you were fortunate to get the photos before the city started repair on it. A jury will have a much clearer understanding of exactly what the state of the sidewalk was from those than from just hearing testimony about it.

Even if the town was negligent there the city may make the argument that she should get either no damages or reduced damages because of her own negligence in not taking reasonable care to avoid the uneven surface. If the damaged surface was visible enough that a typical prudent person would have noticed it given the lighting conditions at the time then the jury may determine she was also negligent by not paying attention to see it and avoid it. If her negligence exceeded that of the city then depending on the rule California uses her damages may be reduced or eliminated altogether. My state uses a comparative negligence system where her damages would be reduced by the degree to which her negligence was a factor in the accident. My guess is that CA has a similar rule. An older rule of contributory negligence, still used in some states, would bar her from any recovery if she was the least bit negligent.

Consulting a personal injury lawyer is the best way for her to know the extent of the city's responsibility and what possible outcomes she might expect should she sue. Typically the initial consultation on personal injury cases are free, so she has nothing to lose but some time to consult a a couple of personal injury lawyers and see what they say.

 

[zddoodah]

If her negligence exceeded that of the city then depending on the rule California uses her damages may be reduced or eliminated altogether. My state uses a comparative negligence system where her damages would be reduced by the degree to which her negligence was a factor in the accident. My guess is that CA has a similar rule. An older rule of contributory negligence, still used in some states, would bar her from any recovery if she was the least bit negligent.

CA uses pure comparative negligence. If damages are $100,000 and the jury determines the plaintiff was 99% at fault and the defendant only 1% at fault, the plaintiff will get a judgment for $1,000.

 

[Taxing Matters]

CA uses pure comparative negligence. If damages are $100,000 and the jury determines the plaintiff was 99% at fault and the defendant only 1% at fault, the plaintiff will get a judgment for $1,000.

Thank you. I suspected that is what California would use because it is a bit more plaintiff friendly than other states, including mine.

 

[quincy]

For help finding a personal injury lawyer in California, here is a link to the State Bar:

https://www.calbar.ca.gov/Public