Court Decision Highlights Need to Update Municipal Codes for Digital Reporting

Municipalities are often the subject of negligence claims brought by citizens who are injured on public property. While it can be difficult for a municipality to be aware of every potentially dangerous condition within its town or city limits, statutes can be enacted to help limit its liability. These laws typically require that the municipality be given prior written notice of the condition so it cannot be held liable for defective conditions without an opportunity to fix them.

As technology has evolved, the way in which citizens commonly report potentially dangerous conditions has also changed. Many current municipal codes which address this issue were written long before any of the technological advancements we have today were even considered. As a result, the statutes/codes should be reviewed and revised to account for new methods of citizen reporting, including any electronic or online systems.

Naturally, this has raised the question of what constitutes prior written notice in the context of liability for municipalities. This was the central issue addressed in the December 2024 Court of Appeals decision, Calabrese v. City of Albany, (2024 WL 5126038).

The Calabrese Case

In Calabrese, the City of Albany (“City”) had previously enacted a prior written notice statute in 1983, which shielded the City from liability for injuries resulting from “any street ... being defective, out of repair, unsafe, dangerous or obstructed unless, previous to the occurrence resulting in such damages or injury, written notice of the defective, unsafe, dangerous or obstructed condition of said street ... was actually given to the Commissioner of Public Works[.]” Approximately fifteen years after the statute was enacted, the City abolished the Department of Public Works and enacted an online reporting system called “SeeClickFix” (“SCF”) which served as an online portal where citizens could report potentially defective or unsafe conditions on public property. SCF was set up to route any complaints to the appropriate municipal office. At the time, the City had appointed the Department of General Services (“DGS”) to receive notices previously handled by Public Works.

In July 2019, the plaintiff was injured when he lost control of his motorcycle in the general area where the City’s Water Department had repaired a water main break approximately two months before. In the months leading up to the accident, DGS had received a number of complaints about a defect in the road near the accident site; some of which were reported through SCF. The plaintiff sued the City and the City moved for summary judgment. The motion for summary judgment was denied and the defendant was granted leave to appeal. The Court of Appeals affirmed the Appellate Division’s denial of the summary judgment motion.

Electronic Notice and Delivery Was Sufficient

In its decision, the Court of Appeals held that the electronic notices submitted through SCF satisfied the written notice component of the statute as the online form is functionally equivalent to physical writings and are observable tangible records. Moreover, the Court noted that any ambiguity as to what constitutes a writing under the statute must be strictly construed against the City. These holdings seem logical. First, essentially all electronic writings create a digital footprint and the SCF notifications presumably provided evidence that a written notice was actually submitted. Additionally, ambiguities in language being construed against the drafter tracts with a well-established principle of contract law.

The Court also held that the reports were “actually given” to the Commissioner of DGS based on the SCF system’s process for routing and maintaining the submitted reports. Even though the reports were not sent directly to the Commissioner of DGS, it was determined that the reports went to the appropriate agency and were actually given to the person designated by statute.

In an attempt to limit its liability, the City implemented a disclaimer in the SCF system which stated that “use of this system…does not constitute a valid notice of claim nor valid prior written notice as established under … state and local law.” The Court, in a footnote, stated that the SCF disclaimer did not provide statutory notice and that it did not operate to undo notice made in compliance with the statute. This is an important point to consider as it gives guidance to municipalities showing that catch-all disclaimers may be disregarded if the statutory notice requirements are satisfied by the electronic reporting system.

Municipalities Should Amend Statutes to Account for Any Online Reporting

In order to properly protect itself from liability, a municipality should amend any prior written notice statutes to accurately reflect what is to be considered “written notice” and “delivery.” The Court in Calabrese said as much, “[o]f course, should a municipality prefer a different definition of ‘written notice,’ it may choose to provide one in its prior notice statute.”

This language, and decision as a whole, highlights the importance for municipalities to review and analyze their prior notice statutes as they are currently written. These laws should be amended to account for any electronic notice system that has been put in place and to clearly define what is considered “written notice” and “delivery.” The statutes should also be amended to remove any ambiguity that exists therein as the courts have shown that it will be construed against the municipality. The failure to amend and properly define the terms in the statute could result in the municipality being held liable for injuries caused by previously reported defective conditions.

Tyler J. Wilson is an attorney in Underberg & Kessler LLP’s Litigation, Labor & Employment, and Municipal Law practice groups. He can be reached at twilson@underbergkessler.com or 585.258.2814.

Reprinted with permission from The Daily Record and available as a PDF file here.