Is the Curb Part of the Sidewalk or Part of the Street? (Clear Writing Award)

You get so used to seeing dry legal writing, both from adversaries and the bench, that when plain English comes along, you just want to leap up and kiss congratulate it. When it comes in a dry trip and fall lawsuit, it’s all the more remarkable.

And so today I’m giving New York Supreme Court Justice Matthew Cooper the Antonin Scalia Clear Writing Award. Or at least I would give it to him if such an award existed.

In this opinion Justice Cooper needs to determine if the curb is part of the street or the sidewalk, because such a determination reflects on who may be liable for its decrepit condition. He’s asked to make this decision in a summary judgment motion, which is to say, there must be no ambiguity about it for him to take a factual issue away from a jury.

And so, with no further ado, I bring you Justice Cooper [applause, applause] in Takebe v NYC Housing Authority. I hate block quotes, but this is worth it:

Everybody involved in this case agrees as to exactly where on Manhattan’s West 89th Street plaintiff, Miyoko Takebe, allegedly tripped and fell. In fact, the location of the roughly eight-inch-wide triangular break in the concrete has been so clearly identified through photographs and deposition testimony that a global positioning system could probably zero in on it with pinpoint accuracy. The problem is that nobody can agree on a fundamental question: Is the fateful spot on the sidewalk or is it on the curb?

Not too shabby a start, but then he gets to compare and contrast the sidewalks of New York and Paris, toss in a Jim Carey movie reference and add some commentary on dog walkers that are told to curb their dogs. And that, my friends, is something you won’t see everyday an opinion:

It turns out that what is the sidewalk and what is the curb, prosaic as that may sound, is anything but clear. This is true not only for this case in particular, but for sidewalks and curbs in general throughout Manhattan. In many cities and towns, the curb generally defined as “the stone or concrete edging forming a gutter along the street” is indeed easy to recognize and differentiate from the sidewalk. Along the boulevards of Paris, as laid out by the civic designer Baron Georges-Eugene Haussman in the second half of the 19th Century, the curb takes the form of weighty quarry stones proudly separating the sidewalk from the street. Along the orderly and uniform streets of Truman Burbank’s Seahaven, every curb is a well-formed concrete edge set apart from the sidewalk by a strip of manicured lawn.

But along the mean streets of New York, at least as far as curbs are concerned, it seems that almost anything goes. In some places there are real curbstones, in others there are defined concrete curbs separate and distinct from the sidewalk pavement. On many streets, though, there is nothing but a rusted metal edge between the sidewalk and the roadway, or there is only the barest trace of a concrete border differing almost imperceptibly from the sidewalk pavement in color or composition. And then all too often the sidewalk just seems to end at the street without any line of demarcation whatsoever. Under the circumstances, it’s little wonder that so many people ignore the command to “curb your dog.” Quite simply, they don’t know where the curb is.

And of course, a little law tossed in after the experts duke it out over sidewalks, curbs and streets:

Because in this case the curb is not readily identifiable, at least to this court’s eye, there remains an issue of fact as to whether the place where plaintiff sustained her injury is the sidewalk or the curb. Consequently, summary judgment is not appropriate.

I hope Nino doesn’t mind me appropriating his name for an award.

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march 1 roundup
somehow not shocked to hear this: “aba pushes for 1000-lawyer legal corps” [aba journal]; appeals court will consider whether roommates.com violated fair housing law by asking subscribers about sexual orientation [heller, onpoint news] …

posted by Walter Olson @ March 01, 2009 11:26 AM