Legal Memorandum: City's Duty to Protect from Defective Roads

Issue: Under the laws of New York, does a city have a duty to protect travelers on a roadway from defective conditions created by an independent contractor once it has notice of the danger?

If control of the road has been established, it is necessary to show that the municipality had notice of the problem and had time to take some corrective action.  In Weisz v. City of Yonkers, 168 Misc. 2d 123, 644 N.Y.S.2d 950, 952 (Yonkers City Ct. 1996), the city declined to make payment for the damage to the plaintiff’s vehicle, arguing that it had no notice of the pothole that allegedly caused damage to the plaintiff’s vehicle. 644 N.Y.S.2d at 952.  Although the court recognized that, in certain cases, such a defense would be viable; it found that the city had constructive notice of the condition in that case.  The court reasoned that, as the size of the pothole was great, it would have been impossible for it to have just “sprung up”; rather, it must have taken days, if not weeks, to reach those proportions.  Given the length of time involved, the court held that the city either knew of, or had sufficient time to note, the pothole’s existence.  Id. at 953.

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