He'd just finished grocery shopping. He was carrying a few bags in his hands as he was walking home.

As he was crossing the street about ready to step up onto the curb, his foot stepped into a deep trench adjacent to the curb.

That caused him to fall and shatter his elbow.

You might be asking, why didn't he pay attention to where he was walking? Didn't he see what was there to be seen? Wasn't this trench visible?

The answer is that there was a roadway construction project underway. It was about 6 PM at the time this gentleman was crossing the street. The problem was that there were no safety cones, barriers or even warning tape to keep people out of the construction area.

The construction company who had been working in that vicinity failed to put up any type of warning signs or barriers to prevent people from walking in and around the trenches they had recently dug. They packed up at about 5 PM that day and nobody bothered to rope off any of the roadway that had this uneven surface.

This trench was about 3-4 inches below grade. Someone walking at dusk would be unable to see the difference in height in the roadway.

Who do you sue in this circumstance?

The obvious answer is the road construction company. They were the ones who were careless and failed to put up warning signs to alert pedestrians and cars about this dangerous and hazardous conditions. However, there's one other legal entity that must be included in a lawsuit like this one.

That would include the town or the municipality that actually hired the construction company to do the work.

You might be asking yourself “Why would we need to sue the town or municipality?”

Since they were the ones that hired the construction company, they will be responsible for the actions of the crew who performed the work. It's also important to keep in mind that when you go ahead and bring a lawsuit against a town or a municipality, the time limit in which to file a claim and then a lawsuit are drastically different than against a private corporation. In fact, they are much much shorter.

In this particular case we brought suit against the private construction company as well as the municipality. It was only after my client had given pretrial testimony that the defense recognized they could not defend this case.

Shortly after that, we were able to successfully resolve this case.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer
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