Paul Plaintiff v.

City of New Diamond No. CV 01 0987

Complaint

NOW COMES the Plaintiff who states as follows:

Parties

1.The defendant is a municipal corporation organized and existing under the laws of the State of X.

2.The plaintiff is a twenty-two year old citizen of the State of X and a resident of the defendant municipality.

Facts

3.Among the statutory duties imposed upon the defendant is the duty to inspect and maintain sidewalks and streets within its territorial limits in a reasonably safe condition.

4.The public sidewalk hereinafter described is a heavily traveled sidewalk within the territorial limits of the Defendant and was in use by many pedestrians.

5.On July 22, 20xx, the plaintiff was riding his skateboard on the public sidewalk on Maple Street.

6.Around 122 Maple Street, the plaintiff came across a hole in the sidewalk that was approximately 12 inches in diameter.

7.The hole was created when the sidewalk began to crumble due to deterioration over time from use and weather conditions.

8.This deterioration process occurs over a number of years and is very visible and easy to notice when properly inspected and maintained.

9.The plaintiff tried to avoid the hole, but it was so large that it could not be avoided.

10.The plaintiff's skateboard went into the hole, causing the plaintiff to fall off the skateboard and fall into the street, where he was hit by a car.

11.The plaintiff suffered severe and painful injuries including two broken arms, broken ribs, and head trauma that resulted in a severe concussion.

12.The plaintiff's injuries caused severe pain and suffering, mental anguish, loss of sleep, loss of enjoyment of life, the inability to perform daily activities, and the inability participate in recreational activities.

13.The plaintiff was unable to work for two months after the accident and lost his job as a result.

14.There are no signs posted in Maple Street, or any of the adjoining or surrounding streets, regarding the use of skateboards on municipal sidewalks.

Legal Claims

Negligence

15.The defendant failed to inspect and maintain the sidewalk so that it would be reasonably safe for the uses and purposes intended.

16.In the exercise of reasonable care and inspection, the defendant should have known of the unsafe conditions and the hole in the sidewalk and should have remedied it, but it failed to do.

17.As a result of the hole in the sidewalk, the Plaintiff sustained severe and painful injuries noted in this complaint.

18.As a result of the injuries, Plaintiff was forced to expend monies for medicine, medical care, and hospital care, and will be forced to spend further sums for the same in the future, all to his financial detriment.

19.As a result of the injuries, plaintiff, who was gainfully employed, lost time and wages from his employment, and then lost his employment altogether, to his further financial detriment.

20.As a result of the injuries, plaintiff's abilities to perform and enjoy normal daily activities have been impaired and his quality of life in the future has been permanently damaged.

1. Should the defendant file a motion to dismiss arguing that the complaint does not assert

a valid claim for negligence?

a. If you answered yes, what are the best arguments to establish that the complaint

does not assert a valid legal claim for negligence?

b. If you answered no, what are the best arguments to establish that the complaint

does assert a valid legal claim for negligence?

2. What defense(s) should be asserted by the defendant, and why should those particular

defenses be asserted?

In answering these questions, you may assume that State X, where the complaint was

filed, follows a comparative negligence approach. You may also assume that there is a

statute that waives immunity for negligence claims against state and municipal

governmental entities and follows the discretionary function and ministerial acts

distinction noted in the presentation and your assign reading materials.