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No Liability for Fall on Defective Sidewalk

April 15, 2017 | DPBC Blawg

This is a good example of why lawyers need to develop (and use!) checklists for trial.  When you file suit after a fall on a defective sidewalk, you need to be sure you can elicit testimony not just that the sidewalk was defective but that it caused the fall…

 

This premises liability action arose following the fall of Shirley Lurks on a sidewalk. Mrs. Lurks and her husband filed a premises liability action against the City of Newbern, alleging the sidewalk constituted a defective and dangerous condition due to the negligence of the city.

On the night of the incident giving rise to the suit, Mrs. Lurks was on her way to a rental house she and her husband owned when she fell on the sidewalk. The fall resulted in Mrs. Lurks requiring surgery on her knee. Thereafter, Mrs. Lurks and her husband filed suit under the Tennessee Governmental Tort Liability Act. The Complaint alleged that the city was negligent in its maintenance of the sidewalk, and that this negligence was the direct and proximate cause of Mrs. Lurks’s injuries. The Lurks further alleged that they had given notice numerous times to the city.

At the trial, Mrs. Lurks testified to the fall, the condition of the sidewalk, and her injuries. Mrs. Lurks did not identify the cause of her fall in her testimony. Though photographs showing the poor condition of the sidewalk were introduced, Mr. Lurks testified that he was aware of the poor condition of the sidewalk, but did not witness his wife’s fall or know what caused her fall.

Following the trial, the court issued a memorandum opinion and final judgment dismissing the Lurkses’ claims. The trial court held that the sidewalk was a defective condition and that the upkeep was the responsibility of the city. However, the trial court held that there was no proof that the defective condition of the sidewalk was the cause of Mrs. Lurks’s fall. The Lurkses appealled.

Ruling

While both the Lurkses and the City raised issues on appeal, the dispositive issue was whether the trial court erred in failing to find a causal connection between the defective sidewalk and the injuries Mrs. Lurks received as a result of her fall. The Court of Appeals held that neither Mrs. Lurks nor any other witness was able to testify as to what caused her fall. The Court emphasized case law that states the Court cannot presume negligence simply because an accident occurred and that a plaintiff must be able to establish causation. The Court held that because there was no evidence from anyone as to the cause of the fall, it must affirm the ruling of the trial court.

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