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THE PRIOR WRITTEN NOTICE RULE RE: MUNICIPAL LIABILITY FOR DANGEROUS CONDITIONS APPLIES TO MORE THAN JUST SURFACE DEFECTS; HERE THE RULE APPLIED TO AN ARCH-SHAPED BOLLARD OR BARRIER WHICH FELL OVER WHEN A CHILD WAS SWINGING FROM IT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming the dismissal of the complaint, over a two-justice dissent, determined the “written notice” requirement in the City of Ithaca code applied to an arch-shaped bollard or barrier placed to protect a tree from being damaged by cars using a parking lot. As plaintiff’s child grabbed onto the bollard and swung from it, it came loose from the ground and fell over, injuring the child’s hand. The city demonstrated it did not have written notice of the condition, which, under the code, is a prerequisite for liability. The dissenters argued a bollard was not in any category which triggers the written-notice requirement:

… [T]he operative query is not whether there is a surface defect affecting safe passage but, more broadly, whether there is a defective condition that would not have come to the municipality’s attention unless it was notified of it … . As such, the prior written notice rule has been applied to conditions as varied as a low-hanging tree branch …, a sharp metal beam … and a bent parking meter pole … . Therefore, the prior written notice rule governs.

From the Dissent:

First, in our opinion, the defective bollard that crushed plaintiff’s child’s hand was not in one of the six locations that General Municipal Law § 50-e authorizes municipalities to cover with a prior written notice law. And second, defendants failed to submit any proof that they installed the bollard properly, in accordance with industry standards. Thus, the burden never shifted to plaintiff, and defendants’ summary judgment motion should have been denied regardless of the adequacy of plaintiff’s proof. Finally, even if defendants had shifted the burden, we believe that plaintiff submitted proof presenting a question of fact as to whether the bollard was unreasonably dangerous when installed, precluding a grant of summary judgment. Gurbanova v City of Ithaca, 2025 NY Slip Op 00252, Third Dept 1-16-25

Practice Point: The written-notice rule, which requires that a municipality have written notice of a dangerous condition before it can be held liable for injury caused by the condition, applies to more than just surface defects. Here the rule applied to an arch-shaped bollard or barrier which fell over when a child swung on it.

 

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