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The C.A.S.H. Courier

ARTICLE from the Fall 2009 Issue

Notice Of Dangerous Condition

What is it? How did we get there? How can it be used?

BY PETER MULLER

Back in the olden days in Merry Old England (from which the basis of our legal system is derived) it was, of course, unthinkable to sue the king. But just in case some audacious soul had the chutzpah to do so - there was a provision in law called "sovereign immunity."

The sovereign and agents acting on behalf of the sovereign were immune from tort-actions in any court of law. After the American Revolution, English common law was adopted in most of the United States as modified by the US Constitution.

However, sovereign immunity stayed in our law and has been a sore-point for claimants for damages sustained by individuals due to government action. The victims and their attorneys have been chipping away at it ever since.

Today there are just a few remnants left, as well as a hodgepodge of state statutes and local ordinances dealing with sovereign immunity. From King George of England to Emperor Bloomberg of New York City, it has been a struggle for individuals to claim compensation for sustained damages and for the sovereign to hang on to his funds.

Let's look at both sides of the issue

On January 15th 2009 John Q. Plaintiff in New York City crossed East 56th Street from the North-East corner toward the South-East corner while pedestrians had the "walk" sign in that direction. The street had not been cleared completely of ice; John slipped, fell, and hit the back of his head. He sustained damages in the amount $1,500,000. Who will indemnify John for his losses? If Mayor Bloomberg were to start writing claims-checks as soon as this and similar claims are filed the city would be bankrupt before springtime.

New York State had a sovereign immunity law in place, but voluntarily relinquished its rights under it -- for the state and whatever remnants of it had trickled down to the municipalities. There were many patches and modifications to sovereign immunity in New York State - some worked and some didn't - some are still in effect, others have been superseded or repealed. To sort all this out, even for just the state of New York, would take a one-semester course at a law school.

One of the remedies that was tried to cope with the obvious injustice potentially involved for both sides was the New York State "pot-hole law." The "pot-hole law" required that prior to a municipality being held liable for consequences arising out of a dangerous condition -- which it was the municipality's responsibility to remedy-- it had to be notified that a "dangerous condition" existed. Once so notified - if the condition persisted and resulted in injury the municipality would be responsible.

In our case, Mr. Plaintiff would have had to send a note to the City of New York, prior to slipping, informing them that there is a patch of ice on East 56th Street about two-thirds between the North- East corner and the South-East corner -- obviously an absurd requirement. In other cases it worked well - there were some pot-holes and caved in streets in parts of New York City that had been left un-remedied for decades. New York's trial lawyers started mapping those sites and sending the maps to the City.

It did, for the time-being, establish a procedure which, if followed, would render the municipality liable if it did not remedy the situation. The current status of the Pot-hole Law in New York State and, even more so in other states, is best described as "murky."

I wouldn't bet on the enforceability of the Pot-hole Law in any given case - but neither would municipal attorneys in most instances. This murky state of affairs encourages us to use the "Notice of Dangerous Condition" primarily as a media-attracting tool.

It can be used in many different situations: bow-hunting in a town park, culling geese, a circus with elephants coming to town etc. -any animal abuse venture that needs municipal approval.

The AR Activists describe in the notice
1) The municipality is permitting a dangerous condition to be created (or allowing it to continue).

2)
The municipality has a fiduciary responsibility to not exacerbate risks of injury to its residents.

3)
The municipality has been hereby forewarned about the permitting of such risks.

4)
The municipality therefore shares in the responsibility to indemnify injured claimants should such injury occur due to the described action.

Are they legally significant if an injury should occur due the condition specified? No case has ever come up to test the legal effect of the notice.

It is primarily a media-attractant. A typical scenario plays out like this:

1) Customize a Notice of Dangerous Condition based on the examples above, and make it look in form similar to a subpoena.

2) Put out a press-announcement describing the danger the municipality is about to create and your intention to serve them with a Notice of Dangerous Condition - at the municipality's clerk's office (most often a town-hall or county office building) at a specified date and time.

3)
Hopefully media will have gathered at the time and location. Address
them briefly emphasizing the potential financial consequences to the municipality (and consequently the tax-rate and consequently the value of the residences, etc.) should an injury occur due to allowing the dangerous condition to be created or to continue.

4)
March off to the clerk's office (hopefully with a trail of media following you) and ceremoniously hand a copy to the clerk.

5) Have press packets ready for the media that contain the Notice of Dangerous Condition.

6) Be sure you also have somebody with you who can operate a camcorder to record the whole event.

7)
In case the media didn't show in large numbers, put out press-releases about the event immediately.

Again - the legal effect of this is unknown since it has never been tried in court. The media attention we might get from serving a Notice of Dangerous Condition could be well worth it.


A bit of past history in this photo: Barbara Stagno, Anne Muller, Peter Muller circa 1996 during a press conference on the Canada goose cull of Clarkstown, NY, in which we spoke of our Notice of Dangerous Condition to the Town and the NYS Dept. of Health.

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