## Facts

- A minor pedestrian was injured after tripping on a metal disk embedded in a New York City sidewalk that rose about one inch above the walking surface.
- The disk covered the housing for a shut-off valve servicing water to the abutting premises from the street’s water main.
- The curb valve had been installed by a prior owner for the benefit of the abutting property.
- The surrounding sidewalk was cracked and sloped down toward the disk; the plaintiff testified she did not see the raised disk while trying to avoid nearby cracks.
- Expert proof indicated curb valves should be maintained flush with the sidewalk and that a one-inch elevation was improper.
- The plaintiff sued the City, alleging breach of the City’s duty to maintain sidewalks in a reasonably safe condition with notice of the defect.
- Before trial, the plaintiff settled with and released the abutting landowner.
- The City filed a third-party claim against the abutting landowner, asserting negligent maintenance of a sidewalk installation serving the premises’ special use and seeking full recovery over under the “special benefit” rule.
- A jury found both the City and the landowner negligent, awarded $100,000 in damages, and apportioned fault 65% to the City and 35% to the landowner.
- The trial court denied the City full indemnity and entered judgment against the City for its apportioned share; the intermediate appellate court reversed and granted the City full recovery over; the landowner appealed.

## Issues

1. Whether, after Dole v. Dow Chemical Co., a municipality may use the “special benefit” sidewalk rule to shift the entire liability for a sidewalk defect to an abutting landowner.
2. Whether, when both the municipality and the abutting landowner are negligent, liability must be apportioned according to comparative fault rather than shifted by full indemnity.

## Decision

- The Court of Appeals reversed the intermediate appellate court and reinstated the trial court’s judgment.
- The court held the special-benefit rule cannot be used to shift the entire liability to the landowner when the municipality is also at fault.
- Liability between the municipality and the abutting landowner must be apportioned based on their respective degrees of fault.
- Because the jury found concurrent negligence and apportioned fault 65% to the City and 35% to the landowner, the City was not entitled to full indemnification.

## Legal Principles

- A municipality has an independent duty to maintain public sidewalks in a reasonably safe condition.
- The “special benefit” doctrine does not permit automatic full shifting of liability to an abutting owner after adoption of comparative apportionment among tortfeasors.
- When both the municipality and the landowner are negligent, each is responsible only for its proportionate share of fault.
- Common-law indemnification is generally limited to situations where the party seeking indemnity is free from fault and is held liable solely by vicarious or derivative operation of law; it is not available to a concurrent wrongdoer.

## Conclusion

The court integrated the special-benefit sidewalk doctrine into comparative-fault law, holding that a municipality cannot obtain full indemnity from an abutting owner for a special-use sidewalk defect when the municipality is also negligent; instead, liability must be allocated by relative fault.


D’Ambrosio v. City of New York, 55 N.Y.2d 454 (N.Y. 1982)