A Guide for Maintaining Pedestrian Facilities for Enhanced Safety
Appendix D: Risk Management Information
Sidewalk Inspection and Maintenance Policies: They Are All They're Cracked
Up to Be
Cities should develop and adopt sidewalk inspection and
maintenance policies if such policies do not already exist. Sidewalk inspection
and maintenance policies serve many useful purposes including providing
guidelines to city employees, conveying information to city residents, and
preventing and/or minimizing lawsuits and exposure.
There are five common misconceptions and myths about
sidewalk inspection and maintenance policies.
has no sidewalk maintenance policy.
- A good written sidewalk maintenance policy need only say, "The
regularly inspects and maintains its sidewalks,
to resident complaints.
- If a city doesn't have any money,
to do anything about
worry about the Americans
or other similar federal or state laws.
a person falls on a sidewalk and city employees determine the sidewalk
where the person fell is defective, city employees
fix the defect because
will look bad if the
injured person sues.
- Documenting problems
with sidewalks, including accidents,
can come back to hurt
This memo addresses these misconceptions and myths,
highlighting how to avoid common pitfalls and how to develop effective sidewalk
inspection and maintenance policies.
No Sidewalk Maintenance Policy
city regularly inspects
and maintains sidewalks, most
likely it has a policy for sidewalk maintenance. However,
this policy may be unwritten.
Most likely, your city has a sidewalk maintenance policy if city employees:
- Periodically inspect
and/or rate all city sidewalk segments.
- Prioritize what
sidewalks to repair and/or
- Decide whether to
repair and/or replace a sidewalk based
on certain criteria (i.e.
difference of height
between two slabs of concrete
of one inch or more).
- Respond to resident complaints and
when performing other work, such as
or inspecting streets.
- Balance sidewalk
with other public works
While an unwritten policy is better than no policy, a
written policy is better than an unwritten policy. A written policy serves to:
- Guide the city's inspection and
providing guidance and
direction for city employees, providing information
for responding to
citizen concerns, and
serving as a tool for long-term planning and
- Preserve the "statutory/discretionary immunity" record. Under
Minn. Stat. § 466.03, subd. 6, a city is immune from liability for
decisions that are based
on a balancing of
and economic factors. In
other words, a claimant cannot
recover where she/he alleges negligent maintenance if
the city balanced social,
economic, and political
factors in formulating its sidewalk
maintenance policy. In maintaining
sidewalks, a city typically balances
political (cost of and
resistance to assessment), social
(public safety, desire to
provide safe sidewalks
to residents, desire to encourage downtown
shopping), and economic (limited
number of employees,
budget for sidewalk
maintenance, cost of repair/replacement)
- Minimize the city's
liability exposure in lawsuits.
Even if a city is not entitled to an immunity defense (which provides
immunity from suit,
not just liability), if a city
establishes and follows a sidewalk maintenance policy, the city can prove that
it exercised reasonable care in
maintenance of its sidewalks.
- Communicate to the public. Specifically,
policy (1) informs property owners
about how the city treats sidewalks; (2) helps
understand the economic implications of sidewalk inspection and
maintenance; (3) allows the public to
comment on and seek modification of the
and (4) may assist in
likelihood of lawsuits resulting from claims resulting from minor,
non-defective sidewalk deviations or conditions.
A Good Written Sidewalk Maintenance Policy Needs No
The ideal written sidewalk inspection and maintenance policy
contains several critical components, including (1) identification of defective
conditions; (2) development of an inspection procedure and schedule; (3)
prioritization of replacement and repair; (4) development of cost recovery
mechanisms; and (5) response to resident complaints and concerns.
A city should
identify defective conditions on its
- Conducting an initial
the city should conduct an initial
survey to inspect and evaluate all
its sidewalks and document its
- Conducting follow-up
surveys. After the initial survey, the city should
follow-up surveys and document
its findings. The frequency of
surveys may depend
on the availability of city employees
and the city's budget. The
frequency of follow-up surveys can
also vary for residential and downtown areas
- Establishing criteria for defective sidewalks.
The city should
considering the location
of the sidewalk, the amount of pedestrian traffic,
the city resources
for repair or replacement,
of a temporary repair, and the wishes of the
city council. The
city must also define when
a sidewalk is defective and requires repair
or replacement considering deviations in elevations,
missing sections, holes,
spalling, and other conditions. The
city should determine who is responsible for determining that a city sidewalk
repair or replacement
Development of an Inspection Procedure
A city should establish a sidewalk inspection procedure and
schedule. In formulating an inspection procedure and schedule, the city should
- Conducting an initial
survey if the city has
not conducted a survey in
past five years.
city employees will survey the whole city at
once or survey the
city area by area.
- Frequency of sidewalk
re-inspecting, considering the location of the
sidewalk, the amount of pedestrian traffic,
available city resources.
- City employees' informal inspections when performing other work.
A city needs to determine how a city employee can report a sidewalk problem
even if she/he is not formally inspecting the sidewalk and the city's response
to such reports.
Prioritization of Repair and Replacement
A city should
repair and replacement by:
- Establishing priority criteria,
of sidewalk, amount of pedestrian traffic, overall condition of
sidewalks in the area, cost
versus effect, and resident complaints.
- Establishing a repair
replacement schedule. The schedule should be realistic,
within budget, and take into consideration the resources needed, the length of the construction
season, and the amount of
work to be done. The schedule should indicate whether sidewalks
to be replaced
area by area and
whether they are to be replaced based on severity of condition regardless of location.
- Establishing a mechanism for modifying the repair
and replacement schedule, considering
time, resource limitations, and
whether city employees
or contractors will perform the repair and
- Providing information
to property owners,
including work schedule and contact
information for complaints
Development of Cost-Recovery Mechanisms
A city can pay for sidewalk repairs and replacements or
assess the costs to benefited property owners. If a city decides to assess the
cost of sidewalk repair or replacement to benefited property owners, it needs
to formulate clear policies and procedures for assessing costs to property
owners. A city can follow various procedures including (1) notifying property
owners that they need to repair/replace sidewalk by a specified date or the
city will perform the work and assess the property owner; or (2) providing that
city employees perform the work in all cases and assess the property owner.
Response to Resident Complaints and Concerns
A city's sidewalk inspection and maintenance policy should
contain a component for responding to resident complaints and concerns. A city
should consider taking the following actions in responding to complaints:
- Complete an
sidewalk after the accident
or complaint and document
the inspection. A city should describe the
condition of the sidewalk
take measurements, and compare the
condition with the condition at the last inspection.
- Determine if post-accident
sidewalk condition constitutes a
defective condition or warrants repair or replacement under the
- Determine whether to
temporary action, or
do nothing. If
the city decides
to do nothing, the city should
state its reasons for
- Communicate with the injured party.
The city can acknowledge the
accident, but should
not admit fault or liability. The city should inform the injured
party what the city has done in the past
(inspection and maintenance policy) and
what it will do in the future in response
to his/her complaint.
city should consult its city attorney
and/or the League of Minnesota Cities Insurance Trust and
notify in writing the injured person
Adoption of the Policy
After the city or city employees formulate a sidewalk
inspection and maintenance policy (1) the
city council should adopt
policy via a resolution; and (2) city employees should
follow the policy.
Limited Resources & Federal and State Laws (Americans with Disabilities Act)
If a city has limited resources, the city cannot
simply ignore sidewalk
the city needs
to formulate a policy that
the resources it does possess.
instance, if budget issues require that the city trim its
budget, the city should
alter its inspection
and maintenance schedule accordingly; it
should not completely eliminate the
schedule. Moreover, the city should
document its decision.
instance, the city should
show that it balanced social,
political, and economic factors in formulating or modifying its
and maintenance policy.
Nor can a city avoid compliance with
state and federal accessibility laws on the
sole grounds that it possesses
funds. Instead, the city must prioritize sidewalk
projects and other public works projects to
ensure compliance with state and federal accessibility laws. Moreover, because state
and federal accessibility laws frequently change (because of
amendments or court
decisions), a city
should consult with its
city attorney to ensure compliance.
This myth contains some truth. City employees should
not repair a sidewalk where
an individual fell until
city consults with its
the League of Minnesota Cities Insurance
it is a good practice to allow
for the city's agents
and representatives to investigate
the incident and take
photographs of the sidewalk
However, assuming that
city's agents have already conducted an
investigation, if a city determines that a sidewalk
where an individual fell
is defective, the city need
not wait until the end
of litigation to repair the defect for
the claimant will
use the information against the city. In
general, the Rules of
a claimant from
introducing evidence that
a city repaired a sidewalk
to prove that the city was negligent
sidewalk beforehand. Minn. R. Evid. 407.
It is very helpful
if a city documents its sidewalk inspection and
maintenance policy and sidewalk
problems. In the event
a lawsuit, the city's
use these documents to prove the existence of
city policies and the city's
the policies. They can
also show that the city exercised reasonable care in inspecting and
maintaining its sidewalks.
if they do not document policies or problems,
there will be no paper
trail to hurt them later on. However,
what they fail to
understand is that
judges and juries
negative inferences from a lack of documentation.
Documentation shows that a city deliberately and conscientiously made decisions.
Jana O'Leary Sullivan 1/09
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