Guest Column by Bill Nailling – Sidewalk Accidents: Responsibility versus Liability

Apr 1, 2012 by

Who is liable when a pedestrian trips and falls on “your” sidewalk?

The sidewalk that runs in front of your home doesn’t belong to you. It’s the City’s property and most property owners assume it is the City’s responsibility to repair if it cracks or is damaged by tree roots. Guess what? The City can legally ask you to fix it or even do the repairs and then send you the bill!  Under a California statute enacted in 1941 as an amendment to the Improvement Act of 1911, Section 5610 of the California Streets and Highways Code states in part,  “The owners of lots . . . fronting on any portion of a public street . . . when that street . . . is improved . . . shall maintain any sidewalk in such condition that it will not endanger persons or property.” Most cities have enacted sidewalk ordinances that specify conditions in which they will accept full or partial responsibility. For example, the City of Los Angeles passed Ordinance No. 146,040 on July 13, 1974 after accepting federal funding that was available for repairs to curbs, driveways and sidewalks damaged as a result of tree root growth at no cost to the property owner. This ordinance is still in effect today even though those federal funds dried up in 1976. Presently, between $4 and $6 million is spent every year on liability claims and the cost to repair approximately 5,000 miles of damaged sidewalks is estimated to be $1.5 billion dollars! It may have qualified as a “shovel-ready” project in 2009 if the City had applied for the funding. The City of Long Beach will replace or repair a damaged sidewalk at no cost to the homeowner based on the following criteria: sidewalk uplifted by the roots by a city-owned parkway tree, joint separations of more than one-half (1/2) inch, loose or broken concrete, reverse-sloped concrete causing drainage problems to private property.

How does a property owner know if the sidewalk is really on their property?

Section 831of the California Civil Code states, “An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.” In California, most if not all public streets are created on a final map by an offer of dedication to the local jurisdiction. Public streets may be dedicated in fee or by a permanent street easement depending on the language. Most public streets are dedicated as permanent street easements. Therefore, the property owner technically owns the sidewalk, parkway and half of the street in fee but has no rights to its use as long as it remains a publicly dedicated street.

Can a property owner be held liable for injuries resulting from a defective sidewalk?/strong>

Courts have recognized that property owners are not the insurer of the safety of any person on the property, and must only be held to a standard of reasonable care in undertaking steps necessary to discover potentially dangerous conditions and to either repair the condition or to provide proper notice to persons who may foreseeably be injured as a result of the existence of the condition. The two landmark cases below gave rise to the development of the “Sidewalk Accidents Decisions” doctrine. Under this doctrine, liability exists only if the sidewalk defect is somehow attributable to the abutting owner.

Schaefer v. Lenahan (1944) San Francisco

“The primary duty to keep sidewalks in repair is on the city. The statute above quoted merely provides a statutory method by which the city may collect the cost of repairs from the property owner. The statute creates a duty on the part of the property owner to keep the sidewalks in repair– but that duty is owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor to reimburse the city if it is compelled to pay such damages.”

Jones v. Deeter (1984) Long Beach

“. . . it would be fundamentally unfair to hold an abutting owner liable to pedestrians injured by defects in the sidewalk and parkway, when past practice has given that owner every reason to believe that the City has undertaken the responsibility to repair these defects.”

A premises liability case is filed when it is held that an abutting owner is liable in tort to a pedestrian injured on the parkway. The Judicial Council of California has prepared California Civil Jury Instructions 1001 – Basic Duty of Care which is read to a jury charged with deciding a particular case. In deciding whether the property owner used reasonable care, the jury may consider the following factors:
(a) The location of the property;
(b) The likelihood that someone would come on to the property in the manner as the plaintiff;
(c) The likelihood of harm;
(d) The probable seriousness of such harm;
(e) Whether the property owner knew or should have known of the condition that created the risk of harm;
(f) The difficulty of protecting against the risk of such harm; [and]
(g) The extent of [name of defendant]’s control over the condition that created the risk of harm; [and]
(h) Other relevant factors

What is being done by Cities to repair damaged sidewalks?

Donald Shoup, professor of Urban Planning at UCLA, offers one suggestion: Point-of-Sale Sidewalk Repairs. The strategy works like this: prior to the sale of any property, owners are required to obtain a Certificate of Compliance proving that the sidewalk in front of their property meets city standards. If a sidewalk isn’t up to snuff, the property owner can either choose to repair it prior to sale or contract with the city to fix the problem. The advantage of this method is that it provides ample cash (from the sale of the property) for the owner to fund the repair, thus eliminating one typical objection to owner-funded repairs. The City of Piedmont and Pasadena are now requiring a sidewalk inspection be completed prior to the sale of a property or issuance of a building permit for work on the property in excess of $5,000.

Pending legislation regarding Section 5611 of the Streets and Highways Code

Assembly member Felipe Fuentes and Senator Alex Padilla introduced Assembly Bill 2231 on February 24, 2012 proposing to amend Section 5611 of the Streets and Highways Code requiring all cities and counties to repair damaged sidewalks at no cost to the homeowner and shall be liable for any injury resulting from the failure to repair.

Good luck with that!

(Visit our website to learn more about the author, Bill Nailling, P.L.S.)

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