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Leaders with the New York Conference of Mayors said dozens of municipalities across the state are considering passing stricter local liability laws in wake of a recent ruling by the state’s highest court that online applications to report road hazards count as prior written notice of a defect.
NYCOM attorneys are drafting possible legislative remedies for local governments that use apps to report road issues and other problems to make it harder to be held liable for hazards that go unrepaired.
"It does create a Catch-22 for local government officials," NYCOM general counsel Wade Beltramo said. "They find these apps very helpful to connect the community to the local officials [in] allowing the public to report problems whether it’s a pothole, a barking dog or property maintenance issue that can be communicated to officials in a fairly precise way. …At the same time it presents a challenge."
A December ruling by the state Court of Appeals decided reports made on an app or digital platform meet state requirements to provide prior written notice of road defects to local governments that must be fixed in a reasonable amount of time.
The decision has made changing local liability laws a hot topic with municipal leaders around the state, Beltramo said.
"That actually takes away a major defense that local governments have to protect them and their taxpayers from excessive tort liability," he argued.
The unanimous landmark decision was made after a motorcyclist in the city of Albany was injured after the city failed to repair a reported pothole through its SeeClickFix program in a timely manner.
Albany and many local governments around the state, use SeeClickFix or a similar program to report defective road infrastructure and other community problems.
In January, Albany changed its liability law to prevent the app from inundating the city with lawsuits.
"We wanted to ensure that we weren’t unintentionally creating a huge liability on the part of our taxpayers with what should be seen as a benefit for all of our residents," Albany Mayor Kathy Sheehan told Spectrum News 1 on Friday.
The city’s Department of Neighborhood Services manages reports filed in the app, which Sheehan said has increased the city’s responsiveness by 80%.
"It’s just been, I think, a much better experience for our residents and for those who use the app because they’re getting a quicker closure, they’re geetting a quicker response," the mayor said.
And many public officials are expected to follow suit — and seize the opportunity to make it more difficult to maintain a claim if a locality fails to do its job.
Attorney Paul Harding, who defended the man who won the SeeClickFix case against the city of Albany, said stricter liability laws could make localities less responsive to addressing dangerous conditions.
"We’d like to think people do the right thing for the right reasons, and often they will, but a motivating factor is if you have liability, it’s going to attach and a lawsuit’s going to proceed, you’re more likely to say ‘We’re going to correct that defect and protect the public," Harding told Spectrum News 1.
Harding, the managing partner at Harding Mazzotti LLP, said the decision could lead to a redefined municipal liability landscape in the state and make it harder than ever to bring a claim against the city of Albany or any locality that alters its liability statute in the same way.
"The issue here is they have taken that away," Harding added. "There will be no cases against the city of Albany unless the perfect storm lines up."
But it’s unclear how many municipalities across the state will follow suit.
The city of Syracuse backed the city of Albany in last year’s case, and uses a similar app that allows people to report issues like potholes and illegal trash pickup.
Syracuse has not moved to change its liability law, but city auditor Alexander Marion said it’s under review.
"We are still reviewing the ruling, its implications and how exactly it will work for the city of Syracuse," Marion said Friday. "But we’re not telling people not to use this technology, not to use our app. We still want to hear from our constituents."
Dozens of municipalities are considering changing their liability statutes of thousands of cities, towns and villages across the state, according to NYCOM. The topic is expected to be discussed at the organization’s annual meeting later this spring.
A written notice of defect was required to be submitted to the municipality before road reporting apps or similar technology existed.
Only the city of Albany has officially changed its liability statute to date.
