IS THE MUNICIPALITY OR THE NEARBY LAND OWNER RESPONSIBLE FOR A “DANGEROUS” POTHOLE IN A RIGHT-OF-WAY?
In Moons v. Wade Lupe Construction Company, Inc., (3rd Dept., August 2, 2007), the plaintiff, was injured when she twisted her ankle in a pothole allegedly on the defendant’s driveway/parking lot. The jury rendered a verdict in favor of the defendant and plaintiff appealed. The Appellate Division affirmed, holding that the pothole was located within the Town’s right-of-way. The Court held that owners of land abutting public property are not liable for keeping that public property in a safe condition merely by reason of the proximity of their property. This, even though the area of the defect may be used to gain access to the abutting owner’s property. Thus, liability for the pothole in the right-of-way could only be imposed on the defendant if it was shown that said defendant created the pothole or that a statute or ordinance charged the defendant with maintenance of the right-of-way. UNDER INSURANCE LAW 5102(D), THE DEFENDANT MUST PROVIDE QUANITATIVE LIMITATIONS TO DEMONSTRATE THAT TH
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- IS THE MUNICIPALITY OR THE NEARBY LAND OWNER RESPONSIBLE FOR A "DANGEROUS" POTHOLE IN A RIGHT-OF-WAY?
