U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Laws and municipal ordinances play an important role establishing who is responsible for pedestrian facility maintenance. In determining which entity is responsible by law for the maintenance, it is necessary to review state statutes and often state case law to determine legal precedent in cases of civil liability. In most circumstances, liability in regards to pedestrian facility maintenance revolves around trip-and-fall and slip-and-fall cases on sidewalks. If a pedestrian trips on a cracked or uneven sidewalk or slips on an icy sidewalk in winter, sustains injuries and/or damages and seeks monetary compensation, who is found at fault and why?
Laws that directly and indirectly affect the maintenance of pedestrian facilities vary from to state to state. Additionally, local ordinances will also vary from community to community, but should be consistent with state statutes. For this research project rather than simply review state statutes, case law was reviewed in four states to determine how laws relating to pedestrian facility maintenance are being interpreted, supported and enforced. The four states selected for this review included North Carolina, New Hampshire, California, and Wisconsin. Sidewalk case law was reviewed with an emphasis on liability. These four states of various sizes and regional differences were not meant to be necessarily representative of certain parts of United States, but chosen to analyze both the similarities and differences of sidewalk liability across the county.
Chapter 1 of this report summarized discussions with municipal and states officials related to pedestrian facility maintenance. Over 45 communities of varying size were contacted to have discussions about maintaining pedestrian facilities. Of all the questions asked, none were responded to with more uncertainty than those about laws and liability. This lack of clarity reinforced the need to review laws and case law. By reexamining responses from communities and states in light of the case law review, observations on how accurately legal precedent was being incorporated into a community's sidewalk maintenance policies and practices was enabled.
Issues of sidewalk liability were a significant factor in driving pedestrian facility maintenance practices in the states reviewed. It is more important to maintain a walkway system to increase safety for pedestrians than to do so just to avoid lawsuits; however, the legal ramifications of being sued as the responsible entity are compelling for communities. A claim for injuries related to a deficient sidewalk is often far more expensive than general upkeep of sidewalks.
One of the main tenants of liability is who has the duty of care to the public. While most states hold municipalities ultimately responsible in cases of sidewalk liability, there are growing instances of municipalities deferring responsibilities to abutting property owners through ordinances. Still, in both situations, there are stipulations put in place to create some protection for the responsible party. Many factors are weighed when determining fault and with the many potential outcomes, having a better understanding of civil liability and the legal precedents for pedestrian facility maintenance is important for pedestrians, abutting land owners and municipalities alike. Unfortunately, this review only enables a narrow look at this issue. As indicated in reference materials, it is important for every community to be in contact with their attorney and risk manager to provide a more complete assessment.
The North Carolina State Department of Transportation states in their Policy and Procedure Manual that local governments are responsible for maintaining all pedestrian facilities. However, legally some responsibility in pedestrian maintenance does shift away from municipalities in North Carolina due to ordinances passed that protect municipalities from complaints. This is especially true in claims made about maintenance issues of sidewalks. While municipalities are still charged with the provision of safe and accessible sidewalks, adjacent property owners are often held liable for sidewalk maintenance issues if an ordinance placed them in control of such property. The landowner is generally and understandably presumed to be liable for conditions on his/her property that is adjacent to sidewalks, but Petty v. Charlotte (1987) states: "it is the control and not the ownership which determines the liability." This ruling highlights how communities can pass the responsibility of public sidewalk maintenance to the adjacent property owner by way of showing that the property owner is in "control" of the sidewalk even if he or she does not own it.
In reviewing case law in North Carolina, there are important distinctions made in regards to who is legally held accountable for sidewalk maintenance and what conditions must exist to be held accountable. This often comes down to the issue of negligence, of which a key aspect is who knew what about the present conditions and when they knew of them. The two most common sidewalk claims regarding negligence are trips and falls and slips and falls (including ice and snow). There are two central cases in North Carolina speaking to sidewalk liability and negligence. In Evans v. Batten (1964), it was found that "...slight depressions, unevenness and irregularities in outdoor walkways, sidewalks and streets are so common that their presence is to be anticipated by prudent persons." Additionally, in North Carolina and five other states, an injured party will be denied judgment (payment) if found to have been guilty of even slight "contributory negligence" in the incident.
This sets the stage for much of sidewalk liability in North Carolina and is the reason why it is difficult for a claimant to win cases in the state. Essentially this ruling says that since no length of sidewalk can be physically perfect at all times, it is considered common knowledge that there will be "minor imperfections" in the sidewalk and a pedestrian must anticipate them. It is often argued then that a fall occurring due to sidewalk damage is the result of pedestrian negligence. What constitutes "minor imperfections" is left unclear in this ruling but it does still give municipalities and property owners in North Carolina the upper hand in cases of liability.
There are several cases which discuss what constitutes "minor imperfections." Joyce v. City of High Point (1976) determined that an elevation difference between two sidewalk pieces between 1-2 inches was not negligence on the part of the city. A more recent case, Desmond v. City of Charlotte (2001), found that 1.6 inches of elevation difference also did not constitute negligence on the part of the city.
In cases where it is shown that anticipation of imperfections was not possible, for a city or property owner to be held responsible it must be shown that the entity charged with maintaining the sidewalk had notice of the condition (Sowers v. Forsyth Warehouse Co., 1962). Oglesby v. S.E. Nichols, Inc. (1991) found that "A building's owner may not be found negligent for a code violation unless: (1) the owner knew or should have known of the Code violation; (2) the owner failed to take reasonable steps to remedy the violation; and (3) the violation proximately caused injury or damage." Proximate cause" means that the injury or damage was a direct consequence of the violation.
In North Carolina, given the temperate climate and scarcity of snow fall and ice, most slip and fall cases take place inside private businesses and do not concern municipalities. However, liability surrounding ice and snow can still be an occasional issue. It is state policy that municipalities are not responsible for the removal of snow and ice from sidewalk except when the sidewalks are adjacent to municipal property. Therefore slip and fall cases are tried similar to trip and fall cases: negligence and prior knowledge need to be proved.
Based on this, where the pedestrian has equal knowledge of the ice, the landowner does not have a duty to remove it (Grayson v. High Point Dev. L.P., 2006). However, if the defendant has actual knowledge of the hazard, he or she has a duty to correct or warn of the condition. Additionally, where there is a "reasonable inference that a [dangerous] condition had existed for such a period of time as to impute constructive knowledge to the defendant," it can be ruled either way and is a question for a jury to decide (Carter v. Food Lion, Inc., 1997).
During our discussions with communities across the county, four municipalities in North Carolina were interviewed: Charlotte, Durham, Salisbury and Davidson. In each community sidewalk maintenance was the responsibility of the adjacent property owner in terms of cost, but the municipalities would do all of the construction and repair work. However, perhaps due to the vagaries of the laws, each community did not know who was liable for claims stemming from maintenance issues. Salisbury mentioned that they have a risk manager who is in charge of investigating all claims, but no other city stated that they have any similar type of practice in place. This may also be due to the fact that the legal precedent set in North Carolina liability cases is that pedestrians are liable except in fairly rare and specific circumstances.
Though it is difficult to directly relate each of their practices to existing case law in the state, there was general consistency between the case law and the sidewalk repair practices reported in the four community discussions. In Charlotte, for example, it was noted that the City's Department of Transportation does temporary repairs to sidewalks as soon as it is notified of issues in order to protect the city and adjacent property owner from liability. This practice is in keeping with the liability protection procedures outlined in North Carolina's case law. Salisbury also has a program that gives immediate attention to reported sidewalk problems and puts into place an action plan for repair. In addition to liability protection, the City also has a risk manager who investigates all claims made against the City. Overall, pedestrian facility programs reviewed for this research tended to be more reactive in nature and not proactive.
In New Hampshire it is the duty of municipalities to maintain pedestrian facilities. According to Chapter 231 of the New Hampshire's state laws "sidewalks shall be maintained, repaired and reconstructed by the city or town in which they are located without further assessment to the abutting owner". This can also be traced through case law to the New Hampshire constitution beginning with State v. Jackman (1898) continuing with two more recent cases, Rutkauskas v. Hodgins (1980) and Ritzman v. Kashulines (1985). These three cases combine to provide the framework for sidewalk maintenance law in New Hampshire. The Jackman decision found that calling upon only those property owners whose property abuts sidewalks to perform maintenance creates a burden leading to an "unequal division of public expenses among taxpayers in direct violation of the principle of equality which pervades the entire (state) constitution."
In Rutkauskas v. Hodgins (1980) it was found that: "...Absent (of) such negligent construction, design or maintenance causing an artificial accumulation of ice or snow...a landlord has no obligation with respect to the condition of the public sidewalk."
Ritzman v. Kashulines (1985) used this language as well in determining that parking lots adjacent to property are also considered the responsibility of the municipality to maintain.
While the responsibility to maintain facilities falls entirely on the municipality, liability stemming from maintenance is based on precedents set by these three cases as well as to state statutes. Under the New Hampshire Revised Statutes Annotated in Title XX Transportation Chapter 231 (RSA 231:92) which is in regards to roadways and liability of municipalities, it states:
A municipality shall not be held liable for damages in an action to recover for personal injury or property damage arising out of its construction, maintenance, or repair of public highways and sidewalks constructed thereupon unless such injury or damage was caused by an insufficiency, as defined by RSA 231:90.
In RSA 231:90, an insufficiency exists when the road or sidewalk is either not safely passable or there is a safety hazard that is not reasonably discoverable by people using the road or sidewalk in a reasonable, prudent and lawful manner. This "insufficiency law" does seek to protect the municipality, however RSA 231:92 does go on to further state that municipalities are held liable when actual notice or knowledge of an insufficiency is present. Based on RSA 231:92, municipalities have a duty to correct "insufficiencies" on public roads and sidewalks and will be held liable in cases where they are not doing so.
Along with the insufficiency law, municipalities in New Hampshire do have some additional protection in regards to liability. There is a time frame of liability that municipalities can use to their advantage. The law states that even when an insufficiency exists and it causes damage or injury, municipalities may not be liable if they follow certain time frame instructions. Within 72 hours after receiving written notice of the condition (or discovering it), the municipality is required to post warning signs and develop a plan to address the condition. That plan must be carried out in a "reasonable" amount of time. As long as the municipality does not respond to an insufficiency in a way that is "grossly negligent or recklessly disregards the hazard," the statute provides protection from liability. The municipality will also not be held liable for any prioritization practices in regards to pedestrian facility maintenance. Prioritization refers to the fact that municipalities cannot repair/maintain all infrastructures at once so a plan is often put into place that prioritizes the maintenance and places all work into a queue. So long as there has been formal written policy beforehand, a jurisdiction may not be held liable for any maintenance that was not done due to being lower on the prioritization list.
On a final note, property owners abutting sidewalks may be held liable in some cases if it is found that they themselves (or their property) caused an insufficiency in the pedestrian environment that resulted in injury. Examples of this could be improper snowblowing that places snow on the sidewalk or perhaps water runoff from roofs or yards that freezes to ice on the sidewalk.
In our discussions with Concord, New Hampshire, regarding pedestrian facility maintenance, the municipality's practices directly reflected those that are in this case law review. The City had an extensive snow removal program that was in keeping with the state mandated municipal responsibility and liability for the clearance of snow and ice. The citizens of Concord were used to having their snow cleared by the city and knew that if a person did their own plowing he/she ran a greater risk of being liable in the case of claim being filed. While the city is held liable for most issues, Concord closely followed the 72 hour window of liability in order to protect itself from claims.
Existing state law (Streets and Highway Code Section 5610-5618) requires the adjacent property owners fronting on any "portion of a public street or place maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition that will not interfere with the public convenience" in the use of the sidewalk. The municipalities have the responsibility to provide "notice to the owner or person in possession of the property fronting on that portion of the sidewalk so out of repair or pending reconstruction, to repair the sidewalk." The property owner has two weeks to begin the repair or the superintendent of streets shall make the repair and the cost of the repair shall be billed to the property owner.
In California, under present law, governmental liability for dangerous conditions of public property is imposed by government codes, in particular Government Code Section 835. Although this lays out liability in general it could and has been applied to sidewalks. Public entity liability occurs when property resulting from a "dangerous or defective condition of public property..." exists. Within this code however, there are several protections made for municipalities that prevent them from being held liable in every case. For a municipality to be held liable there must be prior knowledge or notice of the dangerous or defective condition and a failure to act in a reasonable time.
Specific case law germane to sidewalks themselves comes from a ruling in Whiting v. City of National City (1936), which stated that it is a matter of common knowledge that it is impossible to maintain a sidewalk in perfect condition: minor defects will exist and a municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. This ruling was further upheld in Barrett v. City of Claremont (1953):
"Growing out of the difficulty of maintaining heavily traveled surfaces in perfect condition is the practical recognition that minor defects inevitably occur, both in construction and maintenance, and that their continued existence is not unreasonable. In such case ... no liability may result."
Even with these protections, Californian municipalities take on liability for sidewalks since the state's Streets and Highways Code conferred a duty to maintain sidewalks on the adjoining property owner without changing common law. Property owners could be found liable due to other acts of negligence like improper use, but generally liability falls on the municipality. The code (law) clearly asserts that since property owners have the duty to maintain adjacent sidewalk, they can be held accountable for repair and maintenance costs. This means that property owners are often responsible for the costs associated with maintaining sidewalks adjacent to their property but cannot be held liable in such cases of public injury or damage resulting from the maintenance of their adjacent sidewalk. This type of liability generally falls on municipalities so it is necessary for the jurisdiction to ensure the maintenance of sidewalks.
While this system of law states that adjacent property owners cannot be held liable for sidewalk maintenance issues, California's Streets and Highways Code §5610 (1941) asserts that property owners have the duty to maintain adjacent sidewalk and can be held accountable for repair and maintenance costs. This means that property owners are often responsible for the costs associated with maintaining sidewalks adjacent to their property but cannot be held liable in such cases of public injury or damage resulting from the maintenance of their adjacent sidewalk. This type of liability generally falls on municipalities so it is necessary for the jurisdiction to ensure the maintenance of sidewalks.
This notion was upheld in Williams v. Foster (1989). This case focused on an ordinance passed by the City of San Jose that was modeled on S&H Code §5610 and intended to better protect the city against liability cases by imposing liability on property owners if damages resulted from a failure to maintain adjacent sidewalks. The court found this ordinance to be in conflict with California law and ceased the ordinance.
However, the City of San Jose slowly began to change its ordinance and in 2004 passed another ordinance that allowed for liability in sidewalk cases to be shared or fall solely on the adjacent property owner. This ordinance was upheld in the landmark case of Gonzales v. City of San Jose (2004). Since this ruling, the State of California has seen more cities pass ordinances that place liability on the adjacent property owner but it remains a city-by-city ordinance.
Two communities in California were contacted during the course of researching pedestrian facility maintenance practices: Rancho Cordova and Roseville. Rancho Cordova is aware of its sidewalk maintenance liability and follows the California Streets and Highways Codes. The municipality's procedures are consistent with legal precedence in California: if the city knows of a dangerous condition or defect, it is liable so it seeks to fix issues as soon as possible. Often the city will do temporary fixes to remove itself from liability until a more permanent solution is put in place. In the event of the city not knowing of a problem and in cases of negligence, it is possible for the property owner to be held liable. The city is trusted with the maintenance of all residential sidewalks but not commercial ones so liability is often on a case-by-case basis. An official from Rancho Cordova also mentioned that because the municipality is so young, they find themselves more vulnerable to liability cases because the jurisdiction does not have enough formal policy in place regarding sidewalk maintenance. It seems that the city will eventually move in the direction of San Jose and seek to deflect some liability onto adjacent property owners.
In Roseville, the city has a program to maintain all public sidewalks with a special emphasis on eliminating tripping hazards. Roseville residents are responsible for the repair or replacement of their sidewalk but the city does have a designated zone where the city has planted street trees. If it is found that city-owned trees have caused a dangerous condition, the city will cover the cost of replacement. In terms of liability, Roseville closely follows California legal precedence in that liability is determined on a case-by-case basis. Depending on what the dangerous condition or defect was and whether it was caused by a city-owned tree or a privately-owned tree or was caused by something else entirely is necessary in determining who was at fault and liable for any damages. At this time, the city was not pursuing an ordinance to place greater liability on the adjacent property owner.
Chapter 66 of the Wisconsin state statutes covers general municipal law and issues of sidewalk maintenance. Sidewalk maintenance cases generally follow the standard negligence rules of highway maintenance cases. These statutes assert that municipalities must exercise reasonable care under all circumstances. Reasonable care stipulates municipal liability in sidewalk cases no matter the circumstances including whether or not the municipality was aware or should have been aware of a defect, whether or not it had the time or opportunity to repair the defect, and whether it was reasonably foreseeable that the defect, if left unrepaired, would cause injury to a user. It is also noted that in cases of natural causes of defective sidewalks (i.e. snowfall or ice buildup due to topography and not substandard drainage systems), the municipality can be held liable if it does not remedy the situation within three weeks of notice.
This three-week rule provides the municipality with significant immunity in cases involving snow and ice removal. This immunity is thoroughly discussed in many sidewalk cases in Wisconsin, most notably in Kowalski v. City of Wausau (2000). While the municipality is ultimately held liable for cases involving sidewalk maintenance, they can fine owners for negligence such as failure to remove snow in order to keep sidewalks safer and thus prevent some claims against them. Another power municipalities have is the ability to create a special tax on adjacent properties for sidewalk repair without having to show how the properties will benefit. This allows for repair of sidewalks deemed defective by the community.
There are several important cases that give precedence to these statutes in the court of law. Kobelinski v. Milwaukee & Suburban Transport Corp. (1972) stated that "a city cannot delegate its primary responsibility to maintain its sidewalks, nor delegate or limit its primary liability by ordinance." Hagerty v. Village of Bruce (1978) found that a "property owners' failure to remove snow and ice from sidewalks in violation of a municipal ordinance did not constitute negligence per se." The case giving municipalities greater ease in repairing of sidewalks at adjacent property owner expense is found in Stehling v. City of Beaver Dam (1983). ). Municipalities in Wisconsin will often require adjacent property owners to pay for repairs to sidewalks and will step in to conduct day-to-day maintenance if property owners fail to do so. The municipality may fine and/or receive reimbursement for that maintenance. However, the ultimate responsibility for the maintenance of the sidewalks is still the municipality's.
More recent case law also furthers this precedent. Dorantes v. Heritage Mutual Insurance Company and Jacquez Automotive Service (2002) was a case involving a person who slipped on a sidewalk that crossed the driveway of an auto repair shop. There was additional snow that had fallen off of cars moving in and out of the driveway and also packed snow on the sidewalk from tires. Dorantes slipped on this portion of the sidewalk and sued the auto shop. It was ruled that adjacent property owners had no responsibility to remove snow and ice from sidewalk and could only be found liable if the snow or ice unnaturally accumulated (snow falling off of or getting compacted by cars was considered natural). The ruling was in favor of Jacquez and proved the city to be ultimately responsible for this slip and fall accident rather than the adjacent property owner. Gruber v. Village of North Fond du Lac (2003) affirmed this position, but ruled in favor of the Village of North Fond du Lac because the ice accumulation that directly caused Gruber's slip and fall was a "natural accumulation" and was believed to be an accumulation that occurred within a three week window that communities in Wisconsin can use to clear snow and ice.
Wisconsin cities interviewed for this study were found to follow these statutes and case law precedent closely. Cedarburg, Wisconsin mentioned that if the city built the sidewalk, it was responsible to see that it got repaired. Depending on what caused the damage, it could be the city's or the adjacent property owner's expense. In the case of a city tree causing the defect, the city would be liable. The City also reported instituting programs to increase consistent maintenance to demonstrate that it was doing all that it could to avoid claims. In terms of snow removal, the City specifically mentioned its state-granted three week leeway in terms of snow removal and that the city passes removal responsibilities to property owners (though the City is still ultimately responsible for snow removal and liability claims stemming from such). Madison, Wisconsin also stated that it was specifically liable for all cases involving sidewalks. While the City does have the three-week immunity to provide clear and safe sidewalk conditions, the City has ordinances that fine adjacent property owners for snow removal negligence to encourage the fast removal of snow from its sidewalks. The City also has a maintenance program that requires a share of the construction costs of repair on the adjacent property owner if repairs are needed and not caused by city trees.