Posted by Gary Burger on January 2, 2017 in Successes
A dispute over a removed section of a sidewalk and a resulting bicycle crash has brought about a $270,000 settlement for a St. Louis County man. “He didn’t recognize the sidewalk was missing in time to avoid it,” said Gary Burger of Burger Law.
The firm represented Kimball Nill who, according to his petition, hit the gap in the walkway, flipped over the handlebars of his bike and lost consciousness before awakening some time later. He filed suit over the September 2014 accident against AT&T and one of its contractors, Holloran Contracting Inc., which had removed the sidewalk in order to complete some work.
Temporary fencing had been erected but had fallen to the side, no signage existed to warn of the possible hazard, and the area had not been checked by the defendants for some time, Burger said. “Little fences like that, with a couple wooden stakes, they’re going to come down whether it is kids playing with them on a public sidewalk or the weather,” he said.
Much of his case stressed the lack of a proper permit from St. Louis County in the matter, Burger said. That put the defendants in violation of local ordinance, Burger said, something he contended was directly connected to the safety of cyclists like his client as well as pedestrians.
“One of the reasons for permitting is that when the county knows that a project is up, they send inspectors every once in awhile to make sure the barricades are still up and the area is still safe,” he said. Burger said in a submission to Missouri Lawyers Weekly that he deposed an official from St. Louis County who confirmed the lack of a permit. The submission also said the county erected a “sidewalk closed” sign after the accident. Nill failed to see the gap because the missing section had filled with water after a rain, Burger said.
Steven Hughes of Hughes Harris Law represented AT&T. He said a permit had been obtained but the work ended up in a slightly different location, which changed jurisdiction. “A permit was obtained literally for the sidewalk in the front yard and then they realized they needed to go to the back yard. That went from Chesterfield to St. Louis County,” he said. Regardless, Hughes felt that part of the matter was a moot point. “My view of it was that the issue of whether or not a permit had been obtained was irrelevant to the issue of fault for this incident,” he said. “The permitting issue was simply a revenue generator and so that the county could keep track of who had done work. It wasn’t going to create an inspection situation or any type of activity on the part of the county that was somehow going to direct how this work was done and what signage was put up or not put up.”
He confirmed that fencing was initially present in the area and that no sign had been used. “There was no sign and I don’t think a sign is required,” he said. Hughes said he was not sure of when the fencing of the gap had last been checked but that it had been erected properly and apparently knocked out of place at a later time. He said that it was in dispute whether water was present in the sidewalk gap at the time of the incident. Hughes felt that he would have had a good case to make had the matter gone to trial. “[The plaintiff] claimed he was riding at walking speed and nothing blocked his view of this area in the last at least 50 feet leading up to that spot so I think the jury would have had a significant issue to look at with respect to comparative fault,” he said.
Hughes also added that there may have been issues over causation of the intra-cranial pressure which the plaintiff suffered that he said may have been related to heart medication the plaintiff was taking. Burger said his client had a good recovery despite sustaining a closed head injury and facial fractures and returned to work with no lasting deficits. No liability was admitted by any party in the sidewalk crash settlement which was reached through mediation. Patricia Caragher, who represented the defendant contractor, declined to comment for this story.