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Rosemarie Arnold.

Claims filed this week against the city and state of New York over the Oct. 31 truck attack on a bike path along the Hudson River are strong enough to survive a motion to dismiss, but whether those entities can be made to pay for injuries caused by a terrorist act is ultimately seen as a jury question, observers said.

The city and state could face liability from the truck attack because they had advance notice of vehicles venturing on to the pathway where eight people were killed and 12 injured, New York personal injury lawyer Eric Turkewitz said. That makes the terrorist attack a foreseeable hazard, and the path where the deaths occurred is small enough that the government defendants could be held liable, Turkewitz said.

Government entities can be held liable in New York for design defects that lead to accidents on roadways, Turkewitz said. The claims say no barriers and only minimal signage are in place to prevent motor vehicles from driving onto the pathway. The city might tend to assert in defense that it can’t be held liable for the acts of a terrorist, but that would be an issue for a jury to assess, he said.

Turkewitz wrote in a blog post after the Boston attack that the city would not face liability because the course of the marathon was too large an area to secure. But, he said, the truck attack in New York was distinguishable from the Boston attack because it occurred in a more confined area and because local officials were put on notice of a hazard posed by vehicles driving onto the pathway, whether inadvertently or for malevolent purposes.

Fort Lee, New Jersey, attorney Rosemarie Arnold issued the notices of claim against the city and state Tuesday on behalf of Darren Drake, 32, of New Milford, New Jersey, who was one of those killed by a truck driven by Sayfullo Saipov. The truck was driven a distance of about one mile on the pathway, and the driver knew from taking a test run that he would have unfettered access to the victims, Arnold said.

The path was established as a joint venture of New York City, the state of New York and the Hudson River Park Trust, Arnold said. The city and state knew that cars and trucks regularly venture onto the path, but did nothing to address the problem, Arnold said. No bollards or barriers are there to keep vehicles off the path, and in the past year, over 50 traffic tickets have been issued to drivers who drove on it, either by mistake or intentionally, she said.

A spokesman for the New York City Law Department, Nick Paolucci, would not comment on the merits of Arnold’s claim, saying only, “This incident was tragic. The notice of claim will be reviewed.”

The state attorney general’s press office did not respond to a request for comment on the claim Wednesday.

Arnold seeks monetary damages for the injuries and suffering experienced by Drake, including fear, emotional distress, mental trauma and disfigurement and injuries he suffered before his death. She also seeks to recover on behalf of his parents, Barbara and James Drake, for loss of services and society of their son, as well as funeral and burial expenses, loss of services and loss of financial compensation.

The city and state have six months to investigate the claim before a suit can be filed, said Arnold, who said she was not aware of any other suits filed over the incident. She said she intends to bring a suit against the city and state as well as Home Depot, which rented to Saipov the truck he used in the attack. She said Home Depot was negligent because it failed to check Saipov’s criminal record before renting the truck to him.

Home Depot did not respond to a reporter’s inquiry about the case.

Charles Toutant

Charles Toutant is a litigation writer for the New Jersey Law Journal.

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