Investigation: Dallas Sidewalks To Blame For Several Costly Injuries, City Claims No Fault

L.P. Phillips
November 13, 2018 - 5:00 am

DALLAS (1080 KRLD) - March 15, 2018, was garbage collection day for Nanette Burr. She was out for a morning walk in her Lake Highlands neighborhood when she heard a garbage truck. She was not sure that her garbage tote was out. So she turned and stepped toward her home. It was a step out of a financially sound world and a stumble into ruin.

"I was just checking to see if the garbage had been picked up," said Burr. "And when I stepped down on this crack, my ankle twisted...dislocated and broke. And I heard all those things happening." 

Crack may be an understatement. The broken sidewalk rose more than four inches. Burr's pain was excruciating. She was all alone. Her screams may or not have been heard. "We have so many cats around here all my neighbors thought it was just the cats." 

15-minutes later a friend down the block happened to walk to his car, saw Burr on the ground and called for help. 

Recovery was slow...Burr is in her 60's and admits things don't heal as they did when she was in her 20's. As an employee in an optometrists office, Burr was on her feet for eight hours a day. As a broken ankle patient, she couldn't stand at all. 

Burr lost her $26.00 an hour job, which did not include an insurance plan, to begin with. Her medical bills were between $55,000 and $60,000.

The house which had the broken sidewalk is a rental. Burr doesn't know who the owner is. She assumed the City of Dallas would at least help her with her expenses. "I still think it's the city's to maintain this," Burr said. "Even though there are roots and stuff growing through it. It's a city sidewalk."

Actually, it's not, at least according to the law. The city owns the right of way but the property owner is responsible for the sidewalk. If the city is notified of a crack, break or another defect, the cost of repair is split half-and-half between the City of Dallas and the property owner.

The notification, it ends up, is crucial to the city's liability. If the city is notified of a problem with a sidewalk, and is slow in making repairs, a subsequent injury could result in damages being awarded to the injured. But failure to notify protects the city.

That is a protection that is hard to overcome.

An investigation by KRLD News finds over the last five years, 51 claims have been filed against the city because of broken or damaged sidewalks, including Burr. But in each case, the city rejected responsibility and refused to pay anything. The blame, the City claims, falls to the property owner.

"It's legal but it's not fair. I do not think it's fair at all," said Geoff Schorr, an attorney who has gone head to head with Dallas over sidewalk falls. "These people who fall, if someone doesn't have insurance, if someone lives paycheck to paycheck, they are hurt very badly in a fall like this. They lose their job. There's very little recourse for them."

Not all of the expenses are detailed in the claim forms filed against the city, but some individual claims are near $100,000. 

The City of Dallas declined to provide a representative to answer questions, instead issuing a "...statement about claims in a general sense."

Dallas Case
L.P. Phillips

The statement says when a claim is made, the city attempts to contact the claimant "within 24 business hours of the notice." Departments are contacted to gather information. An investigation is conducted and "Liability is determined." The statement goes on: "If there is no liability, then the claimant is informed about the decision and a denial letter is mailed.

Austin, Texas, engineer Claud Kissmann got one of those letters. Kissmann broke his elbow in a fall outside the Crowne Plaza Hotel in downtown Dallas January 28, 2013. Kissman tripped on a broken sidewalk between the "Crowne Plaza and Elm Street," according to his Notice of Claim. His claim, which is also notification to the city of a problem, was filed February 8, 2013. "The sidewalk in this area slopes down the hill and when I tripped, I made a few steps trying to regain my balance and finally fell to the sidewalk with my hand breaking the fall. I landed on top of my hand, which doubled back due to the force of my body moving down the slope of the sidewalk. This sprained the ligaments in my hand and arm. Beside (sic) the pain in my wrist, jammed my elbow and shoulder. I ended up on my back after rolling on my shoulder in the fall."

Kissmann was off work six weeks. He says the city denied his claim. "It just tells me you just got a bureaucracy and they just ignore it. You know? They're just not going to mess with it and they feel like they're free."  He says it is entirely possible that the crack had been in the sidewalk for weeks, months or even years without anyone formally notifying the city. 

But that doesn't explain what happened to Sally Pietracatella of New Jersey less than three weeks after Kissmann filed his claim. Pietracatella fell over the same crack, "...suffered a fractured right ankle, which is a permanent physical injury." according to her Notice of Claim.

Her attorney, Philip Adelman, says the claim was rejected on grounds the city did not have prior notice of the defect. Adelman, whose office is in New Jersey, did not know about the claim by Kissmann, three weeks before.

If the city is able to avoid paying claims because of a lack of prior notice, consider the case of Juanda Tate of Desoto. Tate, who ironically works at the Baylor Scott & Scott Health and Wellness Center, took a spill outside of the Kay Bailey Hutchison Convention Center on January 4, 2018. She says the uneven sidewalk had a one-inch crack.

"I tripped and I made about three steps and my body, head, was way out in front of my feet and I hit the concrete," she said. 

Tate shattered the ulna bone in her arm, leaving her unable to get up off the sidewalk. Medical records show Tate has a metal plate with up to 25 screws in her arm. She says convention center staff took her inside to wait until an ambulance could get her. "And I could hear the box office staff talking," she said. "And they were saying 'I told you this was going to happen. I knew this was going to happen. We reported it and nobody's come out to fix it."

Yet, after conducting an investigation, Tate got one of the rejection letters.

"After an investigation of the facts and consideration of your claim, we believe the City of Dallas is not liable to you." the letter says. "Our investigation failed to find any negligent conduct on the part of the City or its officers and employees which proximately caused your damages. The city of Dallas regrets to inform you that your claim is denied." The letter is signed by Liability Adjuster Tiffany Harris. 

Tate wondered how a broken sidewalk outside of a city building, teeming with city employees could have skirted by everyone. Yet, when she contacted the city and mentioned the conversation the box office employees had, her story was brushed aside. "This is your property," she said she told the city. "But the city says ' was never reported.'"

Even if the defect had not been reported, and the fault lies with the property owner, the Convention Center is owned by the city. Yet Tate says the protest fell on deaf ears.

Even with insurance, Tate says she has paid around $20,000 out of her own pocket.

Tate tried to hire a lawyer but found nobody has an interest in taking her case.

Suing the city, attorney Schorr says, is almost pointless. He says the laws are bent to favor Dallas.

"Typically what happens is a lawsuit is filed when the case can't be resolved. And the defendant usually files, what's called a summary judgment" to get the case dismissed. If the motion for summary judgment is not granted, the city has a right to file an accelerated appeal. The appeals courts almost side with the city. "I think the laws are geared way more in favor to protect the city than it is the injured people," said Schorr.

Burr, who was looking at retirement before her accident, is literally trying to stumble into retirement where she can at least draw a social security check and try to pay her bills.

"It's totally ruined my life," Burr said. " And I had big plans."