Why a city might not be responsible for a falling pole it owns...

Updated Jan. 4, 2009

Folks have been asking how it was possible, let alone even conceivable, that Joan might have lost her case v. New York City in the matter of the infamous falling traffic light had the lawsuit gone all the way through trial — after all, it was such an open-and-shut situation, right?: A city traffic light on a city sidewalk suddenly breaks from its mooring and crushes a tourist. Hadn’t our lawyer for nearly six years said we didn’t even need to prove negligence because something that shouldn’t fall FELL, and the city had ACKNOWLEDGED that it fell, so the only question seemed to be: To what degree was Joan injured? (Answer: She lives with severe chronic pain and might have to do so for the rest of her life, and there might be other complications as time goes on.) How could the city NOT be held liable for a city-owned pole (that was much too small?) on which had been mounted (significantly oversized and top-heavy?) walk/don’t-walk signs on a city-owned sidewalk in New York’s Chinatown? Doesn’t that automatically show liability? … Well, it turns out there are a few loopholes in law and precedent:

(1) Per our lawyer, the city isn’t legally required, amazingly, to inspect its own traffic poles!

(2) Our own lawyer’s expert deduced by process of elimination that the pole was installed incorrectly in the first place (which to my mind means the city was STILL culpable, but apparently that’s not how the law or legal precedent works) — and a jury might likewise decide there was no way the CITY could have divined it would fall.

(3) The private contractor who maintained the lights was dismissed from the case because he only maintained what the city told him to maintain — which in this case was only the walk/don’t-walk lights atop the pole, not the pole itself (even though there apparently had been two or three times this light had to be fixed in the months leading up to the accident; if you look at the photos that daughter Rose took at the accident, you’ll see the pole looks new and still has plastic covering the top of it; the callbox on the pole looks like it’s been through worse times).

(4) We’re in the midst of a depression (or soon will be), and would a jury of taxpayers want to pay an out-of-stater money when she didn’t lose an arm, get killed or otherwise look the worse for the accident externally?

(5) Had Joan (or the city) lost the case, an appeal would have been costly, there was no guarantee for recoupment, and it would probably have taken years more to get a result – and if Joan lost that appeal, both she and the lawyer would be left with zero.

As the day of trial arrived (Nov. 10, after having been delayed at nearly the last minute in both late January/early February and in September, with plane tickets already purchased and hotel reservations already made, and after nearly six years from the time of the accident), the city suddenly — with thanks to our lawyer for intense negotiating — came up from a semi-lowball settlement offer to a higher amount (but still much less than we had hoped for and less than Joan needs for future care), so, after semi-frantic cellphone texting and voice discussion, Joan accepted the offer.

After the lawyer receives her one-third share and she works out a settlement with Kaiser Permanente for what it claims to be its costs in treating Joan, there will be just enough left over to pay for Joan’s past medical treatments and devices (special bed, special chair, electric cart, ongoing chiro and massage, etc.), some — but not all — future likely medical needs, and some — but not all — of our other outstanding bills. (And while the settlement was entered into the court record in early November, Joan probably won't see a dime until March or April, if then.)

So: No early retirement for me, no yacht in the Bahamas (never a prospect but almost always good for a laugh and to muse about), no end to further legal bills in other pending matters. Then again, Joan never expected much, and we love New York and didn't want to take it too much to task (keep in mind, the accident occurred just a year and a half after 9/11), but she’s stuck with debilitating chronic pain and still has ongoing medical expenses.

When I told a co-worker/former New Yorker about Joan's accident and related it to another New York incident (a theater ceiling falling on a tourist who was watching a performance), he said, "Oh, that's not the problem; falling cornices and bricks are the problems."

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Below is a brief chronology of the Infamous Falling Traffic Light Case:

March 31, 2003: Joan, Gary, Pol, Andy, Rose and Cathy are standing on the northeast corner of Catherine Street and East Broadway, waiting for the traffic light across from us to change so we can cross the street and go to dinsum. Suddenly another traffic light to the left of us and basically out of sight breaks from its foundation: In an instant, Pol's peripheral vision causes him to instinctively put up his hands to shield himself, and he tries to stop the pole from falling further, but it's too heavy; its ONE WAY ONLY metal sign grazes Andy (or we assume that's what cuts him), just misses Gary and pile-drives Joan, knocking her out. She sustained compression of the spine, soft-tissue damage (i.e., muscles and nerves but no broken bones that could be detected). All of Chinatown, it seems, gathers; when Joan comes to, she says (much later) she only remembers seeing feet. An ambulance takes her over VERY POTHOLED streets to Bellevue Hospital, where knife victims and arrested people in handcuffs are also being led in. She is given no pain medication for five hours because the doctors don’t want to mask symptoms. An MRI eventually is taken and later we take a taxi back to our hotel. We were supposed to leave the next day for a walking tour of museums in London.

A friend, Barbara, informs us that in order to presever our right to sue the city, we must register a claim within 90 days. Since we doubt we will be back in New York anytime soon, she recommends a lawyer, whom I call, and who says she will even send someone to us, but Joan — still in shock and full of endorphins/adrenalin — finds the will to go to the lawyer's office a few days later (and suffers as a result of the physical strain), and so the legal process begins.

Depositions, exams, treatments, medications, procedures and going to "pain management class" ensue over the course of the next five-plus years — our lawyer warned us from the start that the earliest we would even hear from the courts was three years (which came to pass almost to the day) and trial five years from the start (again, almost to the day). Procedural delays push the trial to Nov. 10, 2008. Joan settles by phone; otherwise, we would have had to jump on a plane for trial testimony on Nov. 12.

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