As noted in our blog post, a California jury’s finding that the local government was largely responsible for a collision between the driver of a car and a teenage boy riding his bicycle seems certain to be appealed in the next few weeks. The question is, what would the law be if this case were venued in New York instead of California?


I’m sure this will not come as any shock to you, but the short answer is that it depends on the nature of the specific manner in which the plaintiff claims that the municipality was negligent, more specifically, whether the municipality was actively negligent (which is simpler to prove), or whether they were passively negligent, in other words, that the government is liable for their omission rather than their commission.


As a threshold matter, New York law holds municipalities, whether we are talking about the state, city, county, village or town, responsible to assure that their roadways are maintained in a safe condition. As stated above, the nature of the proof required to prevail on a negligence claim in these cases can vary rather widely. Following is a brief summary of the two primary allegations that can be made under New York law.

  • Active Negligence. Under this theory, the plaintiff contends that the defendant municipality should be held liable because they, through their employees, were negligent in their repair, installation or construction of a traffic control device, and that this negligence was an important contributing factor to the car accident.
  • Passive Negligence. In order for a plaintiff to prevail on this theory of liability, however, the plaintiff must prove the following: (a) that the municipality was clearly aware that a dangerous condition was present on this roadway or at this particular intersection; (b) that despite this knowledge, the municipality either failed to investigate or conduct a traffic study of this condition, or that the study which it performed was patently insufficient;  in the alternative, (c) that the municipality had no valid reason for failing to install an appropriate traffic control device at that specific location; and, (d) that the municipality’s negligence played a significant role, i.e., reasonable people could consider it an important factor, for causing the car or pedestrian accident.
  • An important example of where a municipality can be held liable in tort for either its affirmative acts or its failure to act is if the municipality either negligently installs, or negligently fails to properly maintain its traffic control devices to assure that they are readily seen by drivers that would be obliged to obey those particular signs.

    As a final, parenthetical note, it is generally more difficult to prove a case under the latter theory than under the former one because you may have a hard time demonstrating that the municipality had specific knowledge, i.e., such as prior written notice, of the dangerous condition long enough before the accident that they could have remedied the situation and thereby prevented the accident from occurring.

    Unlike some other cases where you very well might not need the services of a lawyer, such as when you are merely trying to recover money under your insurance policy for the property damage to your car, personal injury cases against municipalities based upon their negligent failure to either design or maintain properly their roads, intersections or traffic control devices is rather complicated. Therefore, should your case fall into this category, I strongly recommend that you contact an appropriately qualified lawyer to advise you on your best course of action.

    Jonathan Cooper
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    Non-Compete, Trade Secret and School Negligence Lawyer