Suit for alleged defect in construction or maintenance; defense.
In any suit brought pursuant to the Political Subdivisions Tort Claims Act and sections 16-727, 16-728, 23-175, 39-809, and 79-610 and based upon an alleged defect in the construction or maintenance of a sidewalk, public building, or other public facility, an affirmative showing that the claimant had actual knowledge of the alleged defect at the time of the occurrence of the injury, and that an alternate safe route was available and known to the claimant, shall constitute a defense to the suit.
Source:Laws 1969, c. 138, § 12, p. 631; R.S.1943, (1983), § 23-2412; Laws 1996, LB 900, § 1028.
This section provides an affirmative defense to defendant and must be both pled and proved by defendant. Hill v. City of Lincoln, 249 Neb. 88, 541 N.W.2d 655 (1996).
Defendant village is not liable for injuries suffered by plaintiff when she tripped and fell on a slight irregularity in the sidewalk, where there was no evidence that the village had received any complaint or notice of the condition of the sidewalk, and where the defect was clearly visible to the plaintiff. Doht v. Village of Walthill, 207 Neb. 377, 299 N.W.2d 177 (1980).