CITY OF FAIRFIELD
SPECIAL MEETING
CITY COUNCIL
AGENDA
Tuesday, November 25, 2025, 5:00 p.m.
Police Training Facility
1717 Rex Clift Lane Fairfield, CA 94533
NOTICE TO PUBLIC
The City of Fairfield is committed to providing meeting facilities that are accessible to persons with disabilities and/or have language barriers. To request meeting materials in alternative formats, or to request a sign language interpreter, realtime captioning, or other accommodation, please contact the City Clerk's Office, at least 24 hours in advance of the meeting at (707) 428-7400.
For individuals with hearing or speaking limitations, dial 711 or (800) 735-2922 (English). For Spanish, Tagalog or other language, please dial (800) 855-3000 and provide the communication assistant with the following City telephone number: (707) 399-4010.
DISCLOSURE OF CAMPAIGN CONTRIBUTIONS:
Pursuant to Government Code 84308, City Council Members are disqualified and not able to participate in any agenda item involving contracts (other than competitively bid, labor, or personal employment contracts), franchises, discretionary land use permits and other entitlements if the City Council Member received more than $500 in campaign contributions from the applicant or contractor, an agent of the applicant or contractor, or any financially interested participant who actively supports or opposes the City's decision on the agenda item in the 12 months prior to the date the item is on the agenda. Members of the City Council who have received, and applicants, contractors or their agents who have made, campaign contributions totaling more than $500 to a City Council Member in the 12 months prior to the date the item is on the agenda are required to disclose that fact for the official record of the subject proceedings. Disclosures must include the amount of the campaign contribution and identify the recipient City Council Member and may be made either in writing to the City Clerk before the agenda item or by verbal disclosure during consideration.
Pages
A. CALL TO ORDER 5:00 PM
B. ROLL CALL
Councilmember Doug Carr
Councilmember Doriss Panduro
Councilmember Manveer Sandhu
Councilmember Scott Tonnesen
Councilmember K. Patrice Williams
Vice Mayor Pam Bertani
Mayor Catherine "Cat" Moy
C. PUBLIC COMMENTS
Persons wishing to address the City Council on subjects not on the agenda but within the jurisdiction of the council may do so at this time. The council cannot discuss or take action on matters not on the agenda for this meeting, but councilmembers may briefly respond to statements made or questions raised by the public, ask for clarification from staff, refer the matter to staff, request staff to report back To the council at a subsequent meeting, or place the matter on a future agenda. To speak on an agenda item please use the “raise your hand” feature or press *9 on your phone. Speakers are limited to three minutes per item.
D. PRESENTATIONS
D.1 Tree, Sidewalk, and Fence Update 3
Contact: Chris Carmona, (530) 524-2626
D.2 Landscaping and Lighting Maintenance Districts Funding 122 Contact: Chris Lewis, (707) 428-7089
E. ADJOURN
Any disclosable public records related to an open session item on a regular meeting agenda and distributed by the City of Fairfield to all or a majority of the Fairfield City Council less than 72 hours prior to that meeting are available for public inspection at City Hall, in the 4th floor lobby, 1000 Webster Street, Fairfield, California during normal business hours.
PUBLIC NOTIFICATION
I, Esther Beavers, Deputy City Clerk, do hereby certify that I have caused a true copy of the above notice and agenda to be delivered to each of the members of the Fairfield City Council, at the time and in the manner prescribed by law and that this agenda was posted at City Hall, 1000 Webster Street, Fairfield, California on Wednesday, November 19, 2025.
Tree, Sidewalk and Fence Update
Council Study Session November 25, 2025
1Page 3 of 127
Todays Discussion
2 • Background
• Tree and Sidewalk Task Force-Commissioned 2018
• Issues Framed
• Staffing
• Fallen tree pictures
• Current Litigation
• Fences
• Ordinances
3 Background - February 10, 2018, Council
Workshop
Presentation from:
• Greg Fox, Attorney
• David Clovis, California Joint Powers Risk Management Authority (CJPRMA)
• Chris Carmona, Claims
• City Council allocated $500,000 one-time funds to PW to address trees
4 City of Fairfield Tree & Sidewalk Task Force Members
• Mike Giles, Chairperson
• Scott Tepley, Co-chair
• Rochelle Cooks
• Carol Chervinko
• Many meetings were conducted that involved legal presentations, reviewing other jurisdictions, and homework watching subject matter presentations.
Task Force Findings
• The Task Force Created a Mission Statement
• The Task Force created a report and presented it to the council on July 21, 2020
• Council directed staff to engage the public by conducting public outreach meetings and forums.
• The City retained a public relations vendor
• COVID halted the work
5Page 7 of 127
Issues Framed
• 2008 Recession City Tree Crews 3 to 2.
• 2017 2 to 1 due to budget cuts.
• 2024 1 to 0 due to budget cuts-now relies on contractors. • Aging Trees
• Aging Sidewalks
• City of Fairfield’s Insurance Program’s Self-Insured Retention (“SIR”) is $750,000 (City pays the first $750,000 of “every” claim) • 2025 Neighboring City Jury Trial Verdict Tree Fatality $24.2 Million • 2025 Neighboring City Settlement Sidewalk Trip and Fall Brain Trauma $18.3 Million
6Page 8 of 127
Current Staffing
SIDEWALKS
• Streets, Curb, Gutters and Sidewalks has 13 employees covering 600 miles.
• Contractor budget of $70,000 to shave uplifts.
TREES
• With budget cuts, the City eliminated all City tree crews. The current program has a budget of $430,000/year for contractors. The City has approximately 60,000 trees.
7Page 9 of 127
Examples
• The following are examples of “some” of the damage the trees have caused over the years in the City of Fairfield.
• Since 2015, the City has been successful in defending tree liability on approximately 10 occasions in small claims court.
8Page 10 of 127
2374 WOOLNER AVE
9Page 11 of 127
2374 WOOLNER AVE
10Page 12 of 127
2374 WOOLNER AVE
11Page 13 of 127
924 SECOND ST
12Page 14 of 127
924 SECOND ST
13Page 15 of 127
924 SECOND ST
14Page 16 of 127
FALLEN TREE
15Page 17 of 127
TREE ROOTS
16Page 18 of 127
FALLEN TREE
17Page 19 of 127
FALLEN TREE
18Page 20 of 127
FALLEN TREE
19Page 21 of 127
20 Current Litigation Sidewalks
• Pollanco (CVS Water) vs. City of Fairfield
• Ragsdale (Rust Water) vs. City of Fairfield
• Rodriguez (Eisenhower Street) vs. City of Fairfield
• Valenzuela (Tennessee Street) vs. City of Fairfield
• Wade (Marigold Drive) vs. City of Fairfield
• Brown (Memorial Park) vs. City of Fairfield
• Lacher (Courthouse) vs. City of Fairfield- MSJ Granted Cost of Defense: $85,553.67
*The City has been fortunate not having any litigation resulting from trees.
21 Current Sidewalk Ordinances
Muni Code 16.14 Duty of Property Owner as to Maintenance of Sidewalk
It shall be unlawful for any person owning any building, lot or premises in the city, fronting on any portion of an improved street or way, where a sidewalk is laid, to allow any portion of such sidewalk in front of such building, lot or premises to be out of repair, or to become, be or remain dangerous to the users thereof for any reason. Such person must at all times keep each such sidewalk in such condition that it will not endanger persons or property passing thereon, will not interfere with public convenience in the use thereof, or be or remain an obstruction or impediment to normal, customary and usual pedestrian or vehicular traffic. (Ord. No. 61-5, § 2.)
22 Current Tree Ordinance
Muni Code 21.1 Ownership of trees on city easements
All trees planted on easements of the city are owned by and are under the control of the city. (Ord. No. 12 (1953), § 1
Muni Code 21.2 Pruning, destroying, etc. trees
No person not the owner thereof shall injure, prune, disfigure, destroy or cause or direct the injury, pruning, disfigurement of destruction of any tree within the city, whether situated on private ground or on any street, sidewalk, public easement or public park or place; provided, that a tree may be pruned or removed if the person so pruning or removing such tree or causing or directing its pruning or removal first obtains written consent to such pruning or removal from the owner of such tree. (Ord. No. 12 (1953), § 2.)
23 Ordinance Goals
Sidewalks
A true sidewalk ordinance not only places the maintenance responsibility upon the adjacent landowner, but the liability as well.
This is how a homeowner’s policy would be triggered to participate in the defense or settlement of a claim or lawsuit. The owner is best positioned to monitor and repair any defects, thereby protecting the public.
Trees
Fully shifts the responsibility of maintenance and liability to the adjacent property owner and reverses the City’s maintenance of trees on private property.
24 Tree and Sidewalk Task Force Recommendations
• Update the Municipal Code with clear definitions and responsibilities • Create a tree and sidewalk ordinance that shifts the maintenance responsibility to the adjacent property owner with a financial plan that would sunset in 5–10 years.
• Terminate maintenance on private trees
25 Fences
• Currently, the City of Fairfield provides fencing materials to a property owner where the property abuts City property or thoroughfare. • The current budgets:
$145,000/year wood
$50,000/year masonry
Council Considerations
• Status Quo
• Create New Ordinances
• Enforce current sidewalk ordinance
• Public outreach to explore ordinances
• More funding for trees and sidewalks
• Explore other options
26Page 28 of 127
27 Q&A City Staff
• Sanjay Mishra, PW Director
• Ryan Panganiban, PW Assistant Director
• Jason Riley, PW Assistant City Engineer
• Daniel Camara, PW Streets
• Gary Sponsler, PW Arborist
• Ken Radford, PW Fence
• Chris Carmona, Risk Manager
• Erika Milton, Risk Analyst
Questions and Answers
28Page 30 of 127
CITY OF FAIRFIELD TREE AND SIDEWALK TASK FORCE 2019-2020 DAT
E:
T
O:
FR
OM:
RE:
Tuesday, July 21, 2020
Honorable City Council Members
Tree and Sidewalk Task Force
Report and Recommendations to Council Regarding Trees and Sidewalks
COMMISSIONED
A
s a result of the February 10, 2018 City Council Workshop, staff was directed to establish a City of Fairfield Tree and Sidewalk Maintenance and Liability Task Force pursuant to Resolution Number 2018-71.
TASK FORCE MEMBERS
Th
e City conducted public outreach seeking members of the community to participate in the Tree and Sidewalk T ask F orce. T he City of F airfield residents who were selected and sworn in by Council are as follows:
1) M
ike Giles, Chairperson
2) Scott Tepley, Co- chairperson
3) Rochelle Cooks
4) Carol Chervinko
R
andall Carlson was an original member but r esigned before we convened. His understanding of our actual mission and time commitment was different than he originally believed.
MISSION STATEMENT
T
he miss ion of the Fairfield Tree and Sidewalk Task F orce is to identify ways the City can minimize its risks associated with maintaining trees and sidewalks. The City is to be commended for it s generosity in maintaining and also accepting responsibility for tree a nd sidewalk damages. This Task F orce recognizes and underscores the importance of trees and tree maintenance in the City. The public and businesses in Fairfield value its trees because of the many benefits they provide to the environment, community and t he need to preserve trees for future generations. The Task Force also recognizes the importance of public safety and responsibilities of maintaining sidewalks that allow residents, businesses, and visitors to use them without injury. The Task Force, therefore, is offering proposals for changes to the City's tree and sidewalk ordinances.
2 | Page
ISSUES FRAMED
T
rees
F
or decades, City staff has taken full responsibility of nearly every tree fronting a City street, including private yard trees. The City has v astly grown over time and the City tree program has decreased from three crews down to one since the recession . There are thousands of additional trees due to new development and thousands of trees clearly on private property which the City has maintained due to current landscape/tree easements. Moreover, the Tree Maintenance division is unable to manage irrigation practices of trees on private ly owned land and residents who place rain resistant surfaces such as concrete, artificial turf, decomposed granite or decorative rock around trees significantly affects tree health. The current tree ordinance, City maintenance program and budget are no longer sustainable.
Si
dewalks
M
any sidewalks within the city are in a state of disrepair due to age, poor construction quality, deferred maintenance, tree and vegetation roots, etc. The severity of the disrepair varies from neighborhood to neighborhood. There are approximately 750 miles of sidewalk to maintain . The 1961 City ordinance that places the maintenance responsibility onto adjacent landowners is not enforced.
We r
ecommend the C ity conduct an educational program that informs the public of the 1961 ordinance and clarifies the responsibility of the property owner. Since the City has never followed its own ordinance, there should be financial assistance or softening program for lower income residents who are unable to afford necessary repairs before there are any changes made to the current program.
I
nformation concerning other gov ernmental jurisdictions faced with the same dilemma can be located on the City of San Rafael’s website:
h
ttps://www.cityofsanrafael.org/sidewalk-faqs/
STRUCTURE AND SESSIONS
P
ublic Works administered the program with assistance from Risk Management, which included 4-trainings and informational meetings, 2-webinars and 2-strategic planning sessions.
S
eptember 24, 2019 Tree, Trees and More Trees Webinar presented by David Clovis T
he Task Force listened to a webinar presented by David Clovis who is the former General Manager of the California Joint Powers Risk Management Authority (CJPRMA) of which Fairfield is a member entity. Council may recall he was one of the presenters at the February 10,
3 | Page
2018 workshop alongside Public Works Director Julie Lucido, attorney Greg Fox and Risk Manager Chris Carmona.
T
he webinar included the following:
• E
xposure to Tree Related Incidents and Theories of Liability • The Basic Elements of a Tree Program
• Case History of Tree Incidents
• Creating a Plan of Action to Implement a Program
E
xhibit A attached hereto is the handout for the webinar. T he webinar is also available at the following web address:
https://vimeopro.com/dkfsolutions/csrma-webinars/video/362336611 September 25, 2019 Fairfield 101 Finance and Risk Management T
he Task Force conducted a joint session with Fairfield 101 on the topics of Finance and Risk Management. Finance Director, Emily Combs, discussed the City’s budget and processes with creating and adopting a 2-year budget. She spoke on General Fund reserves, restricted funds and the one-time versus ongoing funds in both operating and capital budgets. Mrs. Combs discussed how one-time funds are often deployed to address City Council priorities such as the Heart of Fairfield project and the City’s tree and sidewalk liability.
We al
so heard from Risk Manag er, Chris Carmona, on the City’s liability program. The City’s current issues relating to trees are not just a Fairfield concern. The City of Fairfield is in a liability pool consisting of 96 other public entities. The City of Fairfield’s losses do not just affect our City, but all the other members of the pool. In other words, the current issues relating to trees are not just a Fairfield concern. Mr. Carmona also described the City’s sidewalk ordinance 16.14 adopted in 1961, which states:
16.14 D
uty of Property Owner as to Maintenance of Sidewalk
I
t shall be unlawful for any person owning any building, lot or premises in the city, fronting on any portion of an improved street or way, where a sidewalk is laid, to allow any portion of such sidewalk in front of such building, lot or premises to be out of repair, or to become, be or remain dangerous to the users thereof for any reason. Such person must at all times keep each such sidewalk in such condition that it will not endanger persons or property passing thereon, will not interfere with public convenience in the use thereof, or be or remain an obstruction or impediment to normal, customary and usual pedestrian or vehicular traffic. (Ord. No. 61- 5, §
2.)
T
o the best of Mr. Carmona’s knowledge, the 1961 ordinance has never been instituted or imposed onto property owners, and he believes the reason is a long history of City staff “going above and beyond for its citizens.”
4 | Page
T
he Task Force reviewed ordinances from the following entities:
• T
he City of Fairfield
• The City of Vallejo
• The City of San Jose
• The City of Grass Valley
• The City of Lodi
• The City of Sacramento
• The City of Redding
• The City of San Rafael
• The City of Vacaville
• The City of Dixon
• The State of California Streets and Highway Code §5600, et. seq O
ctober 10, 2019 Focus on Sidewalks, Streets, Curbs and Gutters The T
ask Force heard from public works staff member Daniel Camara who stated that 13 employees are responsible for over 750 miles of sidewalk, street, curb and gutter with an annual operating budget of $50,000. The division also has an operating budget of $30,000 for outside contractors to inspect and provide saw cutting to feasible areas.
A
ttorneys Mark Hazelwood and Kim berly Y. Chin from t he San Francisco law firm of Allen, Glaessner, Hazelwood & Werth made an excellent 1 ½ hour presentation outlining the applicable laws, verdicts, other municipal agency programs/ordinances and what other agencies have done to address the same issues facing Fairfield. They discussed enacting an ordinance and the politics that comes with it. The sharing of responsibility is important because homeowners are in the best position to identify problems early to remediate issues quickly at a minimal cost. Fairfield’s current ordinance conditions property owners to repair any defects. The attorneys’ legal recommendation is to follow the law and enforce the ordinance. Conversely, if the City desires to take full ownership, then the ordinance should be amended so that the law and maintenance practices are consistent. Lawyers will look to the ordinances during litigation, and the law and City practices must align. Their top recommendation is to follow what most other municipalities are doing and amend the ordinance to include liability. This will shift some of the liability onto the property owners’ insurance carrier for any injury that may result from a sidewalk defect.
J
oseph Ortega from Precision Concrete spent approximately 30 minutes with a well- presented power point describing the services they perform for the City of Fairfield and other agencies of similar size and population in the Bay Area. He covered several different municipal programs, costs and the processes Precision Concrete renders in maintainin g sidewalks. The work they conducted in San Rafael is remarkable. T hey split the City into zones and mapped the City for inspection and repair over a 2-year period before San Rafael enacted their ordinance fully shifting the responsibility of repair and liability onto the property owner. Precision’s Power Point is unavailable due to proprietary concerns; however, if asked Mr. Ortega would return for a Council presentation.
5 | Page
O
ctober 24, 2019 Focus on Trees
A
ttorney Kimberly Y. Chin returned and provided a detailed presentation on Tree Liability and Best Practices. She covered laws including inverse condemnation, attorney fee exposures and most importantly, the fact th at municipal governments should not be providing services to private property (trees). She also provided sample tree ordinances and the significance of defining trees and the responsibility of maintenance for each.
P
ublic Works employees Mike Gray and Gary Sponsler educated us on their processes and procedures. Their division went from three tree crews down to one during the 2008 recession. They maintain almost every tree fronting a City street, including yard trees due to the City’s 1953 Municipal Code which states:
21.1 O
wnership of Trees on City Easements
All trees planted on easements of the city are owned by and are under the control of the city. (Ord. No. 12 (1953), § 1.)
G
ray summarized that since the 2008 recession, the Tree Maintenance Division staffing levels have not increased despite hundreds of new homes and trees. When dealing w ith yard trees, they have no control over the irrigation practices or covering the base of the trees with impermeable surfaces such as concrete. Both scenarios significantly affect a tree’s health and longevity.
M
r. Carmona and Ms. Chin have worked for a vast number of California governments and have never experienced a public entity maintaining yard trees on private property. Mr. Carmona elaborated that public entities are unable to own property on private land without a contractual agreement. Furthermore, it is his opinion the City’s practices are in violation of the California Constitution and possibly a gift of public funds. When handling tree liability claims, he often hears arguments from the claimants that the yard trees in question are “City trees”. Property owners also argue they are restricted from maintain ing or removing t rees without City permission. Mr.
Carmona explained the City’s zoning regulations, as discussed below, require trees to be placed on private property. Similar to any other structure requiring a building permit, such as a roof or other home revitalization project, qualified individuals or contractors should only maintain trees.
C
ommunity Development employee Meily Sheehan spoke on development practices concerning trees and the intent of trees to beautify, increase property values, enhance community pride, preserve wildlife habitat, p rovide protection from summer heat, reduce air and noise pollution, reduce soil erosion and increase the quality of life in the community. Ms. Sheehan also discuss ed zoning regulations that require the following:
6 | Page
City of Fairfield Zoning Regulations-Trees
Low Density 1 tree per every 30-35 feet
Medium Denstiy 1 tree per every 25 feet
High Density (Multi-family) 1 tree per every 25 feet
Commercial 1 tree per every 30 feet
Industrial 1 tree per every 20 feet
O
ctober 31, 2019 Sidewalks and Streets: Implementing an Effective Program to Manage Exposure Webinar presented by David Clovis
T
he webinar included the following:
• E
xposure to Street, Sidewalk and Trail Related Incidents and Theories of Law • The Basic Elements of a Sidewalk/Streets Program
• Discussion of Sidewalk/Streets Incidents
• Creating a Plan of Action to Implement a Program
E
xhibit D attached hereto is the handout for the webinar. T he webinar is also available at the following web address:
https://vimeopro.com/dkfsolutions/csrma-webinars/video/370338226 November 7, 2019 Strategic Planning
T
he Task Force members reviewed all the information presented during the sessions and webinars.
We segregated the two issues of trees and sidewalks then highly prioritized trees as the leading issue.
Trees
Priority Level Issue Recommendation
1 Ordinance Update the City’s 1953 Ordinance to define trees, locations, and responsibility maintenance for each.
2 Finance Request the City to develop a financial plan to address the ordinance.
3 Maintenance Plan Develop a schedule.
4 Tree List Update the City tree list. As well, the selection and
7 | Page
planting of new trees from an approved tree list must
be enforced. If new trees are planted that are not on
the approved tree list, there must be consequences
i.e. replanting, fines, etc.
Sidewalks
Priority Level Issue Recommendation
1 Ordinance Update the City’s 1961 Ordinance.
2 Finance Request the City to develop a financial plan to address the ordinance.
3 Maintenance Plan Develop a schedule.
ANAL
YSIS
F
or decades, the City has provided exemplary services to the residents of Fairfield with respect to trees and sidewalks. When the City originally planted trees and instituted the maintenance program, there were no plans for aging infrastructure. Trees are now at the end of their life and sidewalks in older areas are in disrepair leaving the City with unforeseen risks, hazards and financial strain.
A
great deal of in formation on trees and sidewalks is available . W e recommend that Council consider bifurcating the two issue s due to the ir complexities with trees being the first order of business.
RE
COMMENDATIONS
Th
e Task Force has provided our recommendations below. Most importantly, we recommend the City no longer maintain private trees and sidewalks.
S
econdly, the Task Force strongly recommends amending both the tree and sidewalk ordinances .
Before doing so, a strong public outreach program should be conducted and a plan developed to provide financial assistance for lower income citizens prior to any changes to current programs.
The campaign should include Town Hall meetings to receive public input so the public is well informed and has the opportunity to be a part of the process and changes . The tree and sidewalk issues in a public outreach campaign may be difficult to conduct simultaneously if public participation is significant. In that case, we strongly recommend the two issues be bifurcated
8 | Page
TREES
The City must update the tree ordinance to define the trees and responsibilities for each type of tree and their locations.
Program Description
T1
Staffing
During the 2008 recession, the City eliminated two of three person tree crews. As an option, t he City could choose to fund an additional tree crew to assist with residential trees for 5 years until the maintenance of private trees gradually becomes the responsibility of the owners.
T2
2 year program
The City could establish a program to cost share the maintenan ce and removal of private trees for two years before turning over the responsibilities to the property owner.
SIDEWALKS
to include Street, Gutter and Curb
City must consider updating the current ordinance to have the adjacent property owners share in liability. Currently, the ordinance places the maintenance responsibly onto the property owner. Property owners are in the best position to identify defects.
Program Description
S1
Fully Fund
The City could increase the contractor budget to have a contractor address each defect for two years through an application and eligibility process.
S2
Cost Share
The City Council could establish a cost-sharing program of 50% with the property owner based on budgetary funds dedicated to curb, gutter, street and sidewalk improvements. This program should not exceed 2 years.
9 | Page
S
UMMARY
M
ost important to the Task Force is the safety of our community f ollowed by t he beauty and financial impacts related to trees and sidewalks. Secondly, our liability partnership with 96 other entities should be a strong consideration. We are highly recommending that the City update the tree and sidewalk ordinances to provide clear definitions. T he plan should reduce the financial burden to property owners with assistance from the City. We encourage the City to conduct public forums and outreach to educate and receive input from the public to develop mutually sustainable programs.
CL
OSING
T
he Task Force sincerely appreciates Council for addressing these very important issues concerning our community. We wish you the best of luck in the work ahead.
9/24/19
1 TREES, TREES AND MORE TREES!
IMPLEMENTING AN EFFECTIVE PROGRAM TO
MANAGE THE EXPOSURES
PROVIDED BY:
CALIFORNIA SANITATION RISK MANAGEMENT
AUTHORITY (CSRMA)
PRESENTER:
DAVID CLOVIS
CLOVIS CONSULTANTS AND ASSOCIATES
[email protected]
AGENDA
• EXPOSURE TO TREE RELATED INCIDENTS AND THEORIES OF LAW • THE BASIC ELEMENTS OF A TREE PROGRAM
• CASE HISTORY OF TREE INCIDENTS
• CREATING A PLAN OF ACTION TO IMPLEMENT A PROGRAM
• QUESTIONS
9/24/19
2 TORT EXPOSURES
• RISK MANAGEMENT IS THE PROCESS OF IDENTIFYING,
ASSESSING AND CONTROLLING THREATS TO AN
ORGANIZATION'S CAPITAL AND EARNINGS. THESE
THREATS, OR RISKS, COULD STEM FROM A WIDE VARIETY
OF SOURCES, INCLUDING FINANCIAL UNCERTAINTY, LEGAL
LIABILITIES, STRATEGIC MANAGEMENT ERRORS, ACCIDENTS
AND NATURAL DISASTERS.
CALIFORNIA TORT CLAIMS ACT
• BEFORE YOU MAY SUE A PUBLIC ENTITY, YOU MUST FIRST FILE A CLAIM MEETING THE REQUIREMENTS OF THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE §§ 810- 996.6). THIS LAW APPLIES TO PUBLIC ENTITIES SUCH AS STATE, COUNTY, AND LOCAL
GOVERNMENT AGENCIES OR DEPARTMENTS, AS WELL AS TO GOVERNMENT EMPLOYEES.
• WITH VERY FEW EXCEPTIONS, YOU CANNOT SUE THE GOVERNMENT FOR MONEY
DAMAGES UNLESS YOU HAVE FILED A WRITTEN CLAIM WITHIN THE LEGALLYSPECIFIED TIME PERIOD.
• FILING A CLAIM GIVES THE AGENCY THE OPPORTUNITY TO SETTLE THE CLAIM BEFORE A
LAWSUIT IS FILED AND TO INVESTIGATE THE CLAIM SO THAT IT CAN PROPERLY DEFEND ITSELF, OR TO CORRECT THE CONDITIONS OR PRACTICES THAT LED TO THE CLAIM.
9/24/19
3 DANGEROUS CONDITION OF PUBLIC PROPERTY
• 830. AS USED IN THIS CHAPTER: (A) "DANGEROUS CONDITION" MEANS A CONDITION OF
PROPERTY THAT CREATES A SUBSTANTIAL (AS DISTINGUISHED FROM A MINOR, TRIVIAL OR
INSIGNIFICANT) RISK OF INJURY WHEN SUCH PROPERTY OR ADJACENT PROPERTY IS
USED WITH DUE CARE IN A MANNER IN WHICH IT IS REASONABLY FORESEEABLE THAT IT WILL BE USED. (B) "PROTECT AGAINST" INCLUDES REPAIRING, REMEDYING OR
CORRECTING A DANGEROUS CONDITION, PROVIDING SAFEGUARDS AGAINST A DANGEROUS CONDITION, OR WARNING OF A DANGEROUS CONDITION. (C) "PROPERTY OF A PUBLIC ENTITY" AND "PUBLIC PROPERTY" MEAN REAL OR PERSONAL PROPERTY
OWNED OR CONTROLLED BY THE PUBLIC ENTITY, BUT DO NOT INCLUDE EASEMENTS,
ENCROACHMENTS AND OTHER PROPERTY THAT ARE LOCATED ON THE PROPERTY OF THE PUBLIC ENTITY BUT ARE NOT OWNED OR CONTROLLED BY THE PUBLIC ENTITY.
COUNTY OF SAN MATEO
• 12 YEAR OLD BOY INJURED BY FALLING TREE IN PUBLIC CAMPGROUND • $47.5 MILLION SETTLEMENT
• UTILITY CONTRACTOR
• COUNTY
9/24/19
4 IMMUNITIES
• TRAIL IMMUNITY (§ 831.4)
• HAZARDOUS RECREATIONAL IMMUNITY (§ 831.7)
• NATURAL CONDITION OF UNIMPROVED PUBLIC PROPERTY IMMUNITY (§ 831.2)
CITY AND COUNTY OF SAN FRANCISCO
• $14.5 MILLION PAID TO FAMILY AFTER WOMAN PARALYZED BY TREE LIMB IN
PUBLIC PARK
9/24/19
5 Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards
therefor.
DESIGN IMMUNITY
INVERSE CONDEMNATION
• CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 19.
PRIVATE PROPERTY MAY BE TAKEN OR DAMAGED FOR PUBLIC USE ONLY
WHEN JUST COMPENSATION, ASCERTAINED BY A JURY UNLESS WAIVED, HAS FIRST BEEN PAID TO, OR INTO COURT FOR, THE OWNER. THE
LEGISLATURE MAY PROVIDE FOR POSSESSION BY THE CONDEMNOR
FOLLOWING COMMENCEMENT OF EMINENT DOMAIN PROCEEDINGS
UPON DEPOSIT IN COURT AND PROMPT RELEASE TO THE OWNER OF
MONEY DETERMINED BY THE COURT TO BE THE PROBABLE AMOUNT OF JUST COMPENSATION.
9/24/19
6 CASE LAW
• MERCURY CASUALTY V CITY OF PASADENA
• WGS V CITY OF OROVILLE
TREE MAINTENANCE
CHALLENGES
Challenges
Type
Number
Disease
Drought
Age
Irrigation
Location
Crews
9/24/19
7 Easements-Front Yards
Medians
Parks
City Properties
Planting Strip
9/24/19
8 PROBLEM STATEMENT
>
Responsibilities
(Sidewalk and
Tree
Maintenance &
Backlog)
Resources
(Staffing,
Equipment, &
Contractor
Services)
HR/HF LR/HF
HR/LF LR/LF
Risk Management Matrix
Risk
Frequency
9/24/19
9 TOOLS
GONZALES V. SAN JOSE
• THIS CASE INVOLVES A PERSONAL INJURY SUIT RESULTING FROM A SLIP AND FALL ACCIDENT THAT OCCURRED ON A SIDEWALK OWNED BY THE CITY OF SAN JOSE.
THE PLAINTIFF SUED NOT ONLY THE CITY OF SAN JOSE, WHO OWNED THE
SIDEWALK SHE FELL ON, BUT ALSO CHARLES HUANG, THE INDIVIDUAL WHOOWNED THE PROPERTY ADJACENT TO AND ABUTTING THE SIDEWALK. THE PLAINTIFF SUED
HUANG ON THE THEORY THAT HE HAD A COMMON LAW DUTY TO HER TO
MAINTAIN THE SIDEWALK IN A NONDANGEROUS CONDITION, AS WELL AS A DUTY IMPOSED UNDER SAN JOSE MUNICIPAL CODE SECTION 14.16.2205, WHICH MAKES
OWNERS OF PROPERTY ABUTTING CITY OWNED SIDEWALKS LIABLE TO THOSEWHO ARE INJURED AS A RESULT OF UNSAFE CONDITIONS ON THE SIDEWALKS.
9/24/19
10 TREE & SIDEWALK ORDINANCE
• DUTY TO MAINTAIN SIDEWALKS DOES NOT CREATE A DUTY
OF CARE TO THIRD PARTIES
• ABUTTING OWNERS MAY BE LIABLE TO THIRD PARTIES IF THE
DEFECT IS ATTRIBUTABLE TO THE OWNER- EVEN ABSENT
ORDINANCE
• TO IMPOSE A DUTY ON ADJACENT PROPERTY OWNER
TOWARDS USERS OF SIDEWALKS, AN ORDINANCE MUST
INCLUDE EXPRESS LANGUAGE TO THAT EFFECT.
• GONZALES V. CITY OF SAN JOSE (2004) 125
CAL.APP.4
TH 1127, 1136-1139
TREE & SIDEWALK ORDINANCE
• SHIFTING THE DUTY OF MAINTENANCE AND REPAIR
TO THE PRIVATE AND COMMERCIAL PROPERTY
OWNER
• REDUCE LIABILITY EXPOSURES BY 50%
• GENERAL LAW & CHARTER CITY ADOPTION OF
ORDINANCE
• ANALYSIS OF EXISTING LAW REGARDING
ORDINANCES
• ABUTTING OWNERS DUTY TO MAINTAIN SIDEWALKS
9/24/19
11 COMMON EXPOSURES
• GIRL JOGGING AVOIDSDOWN TREE STRUCK AND KILLED BY VEHICLE • MAN SITTING IN VEHICLE STRUCK BY FALLING TREE DETERMINED TO BE
DISEASED AND NEED FOR REPLACEMENT
• MAN IN PICNIC AREA STRUCK AND KILLED BY FALLING TREE
• FATHER WATCHING DAUGHTER HIGH SCHOOL SOFTBALL GAME
SUSTAINS CATASTROPHIC INJURY
PROGRAM MANAGEMENT
• IDENTIFY EXPOSURES BY LOSS HISTORY
• ADOPT AN AGENCY POLICY ON TREES
• CREATE A SYSTEM FOR RESPONDING TO TREE COMPLAINTS
• ALLOCATE DOLLARS TO MAINTENANCE
9/24/19
12 TREE PROGRAM
• INVENTORY
• IDENTIFY TREE ZONES
• IDENTIFY A MEANS FOR IDENTIFYING LIKELY HAZARDS AND EXPOSURES • DEVELOP A SCALE FOR EXPOSURES
• IDENTIFY A PROFESSIONAL ARBORIST TO OVERSEE PROGRAM
• DETERMINE FREQUENCY AND PRIORITY OF INSPECTIONS
• CONDUCT PROACTIVE MITIGATION OF TREE EXPOSURES
CASE DECISION NON-SUIT GRANTED
• GIRL STRUCK IN CROSSWALK ALLEGE FAILURE TO MAINTAIN TREES
9/24/19
13 LESSONS LEARNED
• SEWER MAINS IMPACTED BY ROOTS
• SIDEWALKS IDENTIFIED AS DANGEROUS
CONDITION CREATING TRIP AND FALL HAZARDS
• TREE INSPECTION PROGRAMS
• IMPORTANCE OF ORDINANCE AND EFFECTIVE
PROGRAMS
“IF ITS PREDICTABLE IT IS PREVENTABLE”!
BY: GORDON GRAHAM
9/24/19
14 QUESTIONS
BY DAVID CLOVIS
CLOVIS CONSULTANTS AND ASSOCIATES
[email protected]
925-989-3964
Sidewalk Liability and Best Practices
Presented By:
Mark F. Hazelwood, Esq.
Kimberly Y . Chin, Esq.
City of Fairfield
Tree & Sidewalk Task Force
October 10, 2019
Dangerous Condition of Public Property
Govt. Code § 835
Plaintiff must prove the following elements:
1. The public entity owned or controlled the property at the time of the injury
2. Public property was in a dangerous condition at the time of the injury
3. The injury to plaintiff was legally caused by the dangerous condition
4. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition
5. Either:
• The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his/her employment
OR
• The public entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury Allen Glaessner Hazelwood & Werth
2
Ownership or Control of the Property
(Govt. Code § 835)
• The Public Entity must be in a position to protect against or warn of the hazard whether or not it owns the
property
• Standard: Whether the Public Entity had the power to
prevent, remedy, or guard against a dangerous
condition.
Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834 Tolan v. State of California(1979) 100 Cal.App.3d 980, 984 Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 990 Public Utils. Comm’n v. Superior Court(2010) 181 Cal.App.4th 364, 373
Allen Glaessner Hazelwood & Werth
3
Definition of Dangerous Condition
Govt. Code § 830(a)
• Statutory definition: “A condition of property that creates a substantial (as distinguished from minor, trivial or
insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”
• Can include public improvement which has become changed, flawed, damaged or has deteriorated to a state that is
potentially dangerous to reasonably foreseeable users
• Potential risks are not sufficient to impose liability.
Alexander v. State of California(1984) 159 Cal.App.3d 890, 897 Allen Glaessner Hazelwood & Werth
4
Trivial Risks Excluded
Govt. Code § 830(a)
• Public entity is only liable when it
creates a substantial risk of injury
as opposed to minor, trivial, or
insignificant risk
• Whether a defect is too trivial can
be decided as a matter of law
Sambrano v. City of San Diego (2001) 94
Cal.App.4th 225, 234
• A full assessment of all surrounding
circumstances is necessary to
determine whether the risk is
substantial or trivial
Fielder v. City of Glendale (1977) 71
Cal.App.3d 719, 734;
see also Calaroso v. Hathaway (2004)
122 Cal.App.4th 922, 927
Allen Glaessner Hazelwood & Werth
5
Trivial Defect
• Specifically excluded from liability per
Govt. Code § 830.2
• There is no “magic number” that makes a
condition or defect trivial
• Courts use a Totality of the Circumstances
test – may consider:
• The size of the defect or condition
• Whether view of the condition was
obstructed
• Whether the defect or condition had broken
or irregular edges
Allen Glaessner Hazelwood & Werth
6
History of Similar Accidents
• History of similar accidents during the course of normal use of a property can support a finding of a dangerous
condition
Baldwin v. State (1972) 6 Cal.3d 424
• Absence of prior accidents tends to prove no substantial risk of injury
Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243 McKray v. State of California (1977) 74 Cal.App.3d 59, 62 Beuchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 36-38 Allen Glaessner Hazelwood & Werth
7
Use with Due Care
• Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380 • Facts: Eight year old injured when attempting to ride his bike down a steep, wet, grassy hill in a park
• Holding: Court affirmed summary judgment in City’s favor because park’s condition was not a dangerous condition
• Reasoning: No reasonable person would conclude the
property created a substantial risk of harm to reasonably foreseeable child users who used the property with the
due care expected of children
• See also Chowdurry v. City of Los Angeles(1995) 38
Cal.App.4th 1187
Allen Glaessner Hazelwood & Werth
8
Causation
• The condition of the property was a legal cause of the injury
• Definition of legal cause: A cause which is a substantial factor bringing about the injury.
CACI 1100
Milligan v. Golden Gate Bridge Highway & Transp. District (2004) 120 Cal.App.4th 1
Cordova v. City of Los Angeles (2015) 61 Cal. 4th 1099
Allen Glaessner Hazelwood & Werth
9
Actual Notice
• If employee, agent or department has notice and “knew or should have known of its dangerous condition” Govt.
Code § 835.2(a)
• Actual inspection
• Defect or danger reported to entity
• Prior measures taken to remedy or warn of defect
• Knowledge of similar accidents and/or claims
• Inspection – but no follow-up?
Allen Glaessner Hazelwood & Werth
10
True or False?
• You can avoid “notice” by not performing inspections.
Allen Glaessner Hazelwood & Werth
11
False.
• There is an affirmative duty for a reasonable inspection program, regardless of funding.
• Responding to complaints is only part of an inspection program.
• Do you encourage reporting from public and staff?
• Do you have a documented procedure and follow-up?
Allen Glaessner Hazelwood & Werth
12
Duty to Maintain
• A public entity has a non-delegable duty to maintain
their property in a safe condition.
Allen Glaessner Hazelwood & Werth
13
Constructive Notice
• Plaintiff’s burden of proof
• The condition existed for such a period of time and was of such an obvious nature that the Public Entity, in the exercise of due care, should have discovered the
condition and its dangerous character. Govt. Code §
835.2(b)
• Look for similar accidents, obvious age/condition of
defect, location, complaints
Allen Glaessner Hazelwood & Werth
14
Constructive Notice and the Reasonably
Adequate Inspection T est
• Would the condition have been discovered by an inspection system that was reasonably adequate to inform the public entity about whether the property was safe for its intended and foreseeable use? (Govt. Code § 835.2(b)(1))
• Deciding not to have an inspection program – is that
“reasonable”?
• Usually a question for the jury, not the judge.
Allen Glaessner Hazelwood & Werth
15
Defenses
• Comparative negligence – claimant at least partially at fault for injuries
• Assumption of risk – claimant accepted the known risks of participation
• Third-party negligence
• Reasonableness of act or omission creating the condition • Reasonableness of protective measures
• Proper contracts
• Immunities
• Design immunity: Government Code § 830.6
• Weather conditions on streets: Government Code § 831
• Trail immunity: Government Code § 831.4
• Hazardous recreational activity: Government Code § 831.7 Allen Glaessner Hazelwood & Werth
16
Streets and Highway Code 5610 – 5618
(1941)
• “Owners of lots fronting on any portion of a public street or place (including park or parking strip) shall maintain any sidewalk in such condition as to not endanger
persons or property or interfere with the public
convenience…”
• An enabling statute that outlines the most severe
methods to repair and finance
• Effect of a local ordinance
Allen Glaessner Hazelwood & Werth
17
Sidewalk Liability Sharing Ordinance
• Not the same as the 5610 et seq. statute
• Based on Gonzalez v. City of San Jose (2004)
• Joint and several liability – public policy – not a full transfer of duty or liability
• In addition to duty to maintain, now owner has civil
liability to pedestrians (negligent failure to maintain and/or notify the entity)
• Allows plaintiffs to sue owner directly – and for city to cross-complain
Allen Glaessner Hazelwood & Werth
18
Gonzalez v. City of San Jose
• Places liability where it belongs – on the person closer to the defect (popular restaurant) – “eyes and ears”
• Brings in owner’s insurance carrier to the mediation or settlement conference = $$$$$
• Belief that it will increase premiums – open to debate – ultimately repairs the defect
• Preserves city budgets and staff for more critical needs • Brings value to the partnering strategies
Allen Glaessner Hazelwood & Werth
19
Life without a Gonzalez Ordinance?
• Property owner still has duty to maintain and repair
defect except where city created the dangerous
condition (Streets & Highways Code)
• Property owner is liable for his/her own negligence or fault
• City is liable for injuries due to its own failure to maintain and for hazards it has created
• Ordinance creates affirmative duty
Allen Glaessner Hazelwood & Werth
20
City of Richmond Sidewalk Ordinance
12.36.025 – Property owner responsibility to repair and maintain sidewalk. a) The owner of a parcel of real property which fronts on any portion of a sidewalk between the property line of the parcel and the street line, including the parking strip and the curb, is responsible for the repair and maintenance of the sidewalk and shall pay the cost and expense of repair and maintain said sidewalk area whether or not the City has notified the owner of the need for such repairs or maintenance or has performed similar repairs or maintenance in the past.
b) The owner of a parcel of real property is under a duty to members of the general public, including but not limited to users of the sidewalk, to keep the portion of any sidewalk described in subsection (a) in a safe condition.
c) The failure of the owner to fulfill the duties imposed by subsections (a) and (b), or the performance of such duties and obligations by the owner in a negligent manner, shall constitute negligence. An owner shall be liable to any member of the general public injured on or by a sidewalk area if the owner’s negligence hereunder is a proximate cause of the injury. The City shall not be liable for an injury caused by the negligence of an owner.
(Ord. No. 14-00, N.S., § 1, 5-9-2000)
Allen Glaessner Hazelwood & Werth
21
Americans with Disabilities Act History
• Congress enacted the Americans with Disabilities Act in 1990
• Title II applies to public entities: “Subject to the
provisions of this subchapter, no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Allen Glaessner Hazelwood & Werth
22
Barden v. City of Sacramento (9th Circuit,
2002)
• In a unanimous ruling, the court held:
• “Services, programs or activities” brings within its scope “anything a public entity does.”
• “The focus of the inquiry…is not so much on whether a particular public function can technically be characterized as a service, program, or activity, but whether it is a normal function of a governmental entity.”
• Title II thus applies to the maintenance of public sidewalks, which is the normal function of a municipal entity.
• At trial, the City could present evidence that “undue financial and administrative burdens” excused its
compliance with the ADA.
Allen Glaessner Hazelwood & Werth
23
Avoiding Barden: Recommendations
• Establish process for responding to complaints quickly and effectively
• Self-evaluation
• Transition plan
• Regulations: Priority to areas accessing government
buildings, transportation and commercial facilities
• Policy: Priority to any area that is subject of a complaint • Regular updates, reasonable implementation schedule
• ADA Advisory Committee
• ADA point-person
• ADA sidewalk fund
• “Sidewalk ordinance”
Allen Glaessner Hazelwood & Werth
24
Best Practices: Sidewalk Inspection and
Maintenance Policy
• Develop a written policy and adopt policy
• Develop an inspection procedure/schedule
• Prioritize repair and replacement
• Provide notice to owners and follow up
• Develop cost-recovery mechanisms
• Respond to resident hazard reports
• Document completion of repairs
Allen Glaessner Hazelwood & Werth
25
QUESTIONS?
Mark F. Hazelwood, Esq.
[email protected]
Kimberly Y . Chin, Esq.
[email protected]
180 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 697-2000
Allen Glaessner Hazelwood & Werth
26
Tree Liability and Best Practices
Presented By:
Kimberly Y . Chin, Esq.
City of Fairfield
Tree & Sidewalk Task Force
October 24, 2019
What Trees Can Cause Liability for the
City?
• Trees that the City own, maintain, or control
• This could include:
• Park Trees
• Trees along streets, including medians
• Trees in City easements
• Trees on private property to the extent that they affect property that the City owns, maintains, or controls
• Ex. Sidewalks, streets
Allen Glaessner Hazelwood & Werth
2
Dangerous Condition of Public Property
Govt. Code § 835
Plaintiff must prove the following elements:
1. The public entity owned or controlled the property at the time of the injury
2. Public property was in a dangerous condition at the time of the injury
3. The injury to plaintiff was legally caused by the dangerous condition
4. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition
5. Either:
• The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his/her employment
OR
• The public entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury Allen Glaessner Hazelwood & Werth
3
Dangerous Conditions and Trees
Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829:
City is not immune from liability for a tree that was on city land falling onto plaintiffs’ house which was on private land adjacent to city land.
Allen Glaessner Hazelwood & Werth
4
Inverse Condemnation
• United States Constitution – Fifth Amendment
• “… nor shall private property be taken for public use, without just compensation.”
• California Constitution, Article I, Section 19
• Property may not be taken or damaged for the public
without just compensation to the owner
5
Differences from T ort Causes of Action
• No tort claim necessary
• Three year statute of limitations
• Strict liability for public entities if plaintiff establishes elements
• California Code of Civil Procedure § 1260.040 permits a party to move for a ruling on a legal issue affecting the
determination of compensation (a.k.a. liability)
• Not entitled to a jury trial on any other determinations other than the issue of compensation
• BUT: Weiss v. People ex rel. Dept. of Transportation, et al. (2018) 20 Cal.App.5th 1156 held that C.C.P . § 1260.040 did not apply to inverse condemnation
• California Supreme Court agreed to review
• California Code of Civil Procedure § 1036: Attorney’s fees and expert fees may be awarded
6
Inverse Condemnation
A property owner may recover from a public entity for any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and
constructed ... whether foreseeable or not. Albers v.
County of Los Angeles (1965) 62 Cal.2d 250, 263–264
7
Public Project or Improvement
A public improvement is a project or use that involves:
1. A deliberate action by the state
• Requires deliberation by a public entity (a policy decision), not by an employee. Paterno v. State of California(1999) 74 Cal.App.4th 75, 88
2. Taken in furtherance of public purposes
• A “use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.” Bauer v. County of Ventura(1955) 45
Cal.2d 276, 284
8
Inverse Condemnation Causation
• The damage must be substantially caused by an inherent risk presented by the deliberate design, construction, or
maintenance of the public improvement. City of Oroville v.
Superior Court (2019) 7 Cal.5th 1091, 1105.
• The injury to property must be an “inescapable or
unavoidable consequence” of the public improvement as
planned and constructed. City of Oroville, 7 Cal.5th at 1108. 9
Inverse Condemnation and Trees
• Mercury Casualty Co. v. City of Pasadena (2017) 14
Cal.App.5th 917: A tree constitutes a work of public
improvement for purposes of inverse condemnation
liability if the tree is deliberately planted by or at the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road
Allen Glaessner Hazelwood & Werth
10
Tree Ordinance
• Similar to sidewalk ordinance – places maintenance
responsibility on adjacent property owners and creates a duty to third parties
• Jones v. Deeter (1984) 152 Cal.App.3d 798, 805: Should [the City] tire of its responsibility to care for the [trees planted on the parkway], this task may be passed on to
abutting owners under the procedure established by
Streets and Highways Code, sections 5600 et seq.
Allen Glaessner Hazelwood & Werth
11
Examples of Tree Ordinances
SANTA ROSA MUNICIPAL CODE § 13-32.010:
(A) The owner of a lot fronting on or adjacent to any portion of a street shall maintain any trees, shrubs, hedges or other landscaping along said street or within the street right-of-way adjacent to his or her property in such nondangerous condition that the trees, shrubs, hedges or other landscaping will not interfere with the public convenience or safety in the use of the streets and sidewalks. Said owners shall maintain such street trees so that there is a minimum eight-foot vertical pedestrian clearance from the top of the sidewalk and a minimum 13-foot vertical vehicular clearance from the top of the curb, to any part of a streettree. (B) For purposes of this section, maintenance of trees, shrubs, hedges and other landscaping includes but is not limited to: deep root watering, root pruning, installing root barriers, clearance and structural trimming, fertilizing, pest control, and removal of branches, leaves and other debris.
(C) Property owners required by this section to maintain trees, shrubs, hedges and other landscaping shall owe a duty to members of the public using public streets and sidewalks to maintain such trees, shrubs, hedges or other landscaping in a safe and nondangerous condition for users of the public streets and sidewalks. (D) If any property owner fails to maintain any adjacent trees, shrubs, hedges or other landscaping in a nondangerous condition as required by this section, and as a result any person suffers damage or injury to person or property, the property owner shall be liable to such person for the resulting damages or injury.
Allen Glaessner Hazelwood & Werth
12
Examples of Tree Ordinances
SAN JOSE MUNICIPAL CODE § 13.28.400:
A. The property owner of a lot or portion of a lot adjacent to or fronting on any portion of a street shall maintain and replace, if necessary, any street trees, shrubs, hedges or other landscaping adjacent to or fronting on the subject property in such condition that the street trees, shrubs, hedges or other landscaping comply with this chapter. Each property owner shall plant and replace any removed or otherwise missing street trees in accordance with the requirements of Sections 13.28.300 and 13.28.310.
B. A property owner required by this section to plant, maintain, and replace, if necessary, street trees, shrubs, hedges and other landscaping shall owe a duty to members of the public using streets to maintain such street trees, shrubs, hedges or other landscaping in a safe and nonhazardous condition for users of the streets. For purposes of this section, maintenance of street trees, shrubs, hedges and other landscaping includes, but is not limited to: watering, pruning, fertilizing, pest control, removal of branches, leaves, and other debris, weed abatement, and protection of the critical root zone.
C. A property owner required by this section to maintain any street trees, shrubs, hedges, or landscaping shall comply with the following:
1. Provide the necessary maintenance so that the street tree, shrub, hedge or landscaping is not in a hazardous condition or in a condition that will likely become a hazardous condition;
2. Provide a minimum eight-foot vertical pedestrian clearance from the top of the sidewalk and a minimum fourteen-foot vertical vehicular clearance from the top of the pavement, to any part of a street tree;
3. Provide adequate clearance for unobstructed pedestrian and vehicular view of all authorized traffic signals, traffic cameras, street lights, regulatory signs, street name signs, and other similar type of equipment or signs;
4. All maintenance shall be completed in accordance with the American National Standard Institute (ANSI);
5. Obtain a permit as required in Part 3 above.
D. If any property owner fails to maintain any adjacent street trees, shrubs, hedges or other landscaping in a nonhazardous condition as required by this part, and any person suffers damage or injury to person or property, the property owner shall be liable for all damages or injuries caused by the failure of the owner to maintain the adjacent street trees, shrubs, hedges or other landscaping in a non-hazardous condition.
Allen Glaessner Hazelwood & Werth
13
Best Practices
• Develop clear policies/procedures regarding:
• Which trees are maintained by the City v. Property Owners • Clearly define categories of trees and use those categories consistently
• Recommendation: At the very least, the City should not maintain trees that are not on its properties.
Allen Glaessner Hazelwood & Werth
14
Allen Glaessner Hazelwood & Werth
15
Best Practices Cont’d
• What maintenance the City will do v. Property Owners
• Removal procedures
• Determine what trees the procedures would apply to
• Planting procedures
• Determine what trees the procedures would apply to
• Acceptable trees list
• Policies/procedures can be in the form of an ordinance or written policy or both
• Consider adoption of a cost-sharing policy
• Preview any changes in maintenance responsibilities and communicate clearly and consistently with Property
Owners with regard to their maintenance
responsibilities
Allen Glaessner Hazelwood & Werth
16
QUESTIONS?
Kimberly Y . Chin, Esq.
[email protected]
180 Montgomery Street, Suite 1200
San Francisco, CA 94104
(415) 697-2000
Allen Glaessner Hazelwood & Werth
17
10/31/19
1 SIDEWALKS AND STREETS
IMPLEMENTING AN EFFECTIVE PROGRAM TO
MANAGE THE EXPOSURES
PROVIDED BY:
CALIFORNIA SANITATION RISK MANAGEMENT
AUTHORITY (CSRMA)
PRESENTER:
DAVID CLOVIS
CLOVIS CONSULTANTS AND ASSOCIATES
[email protected]
AGENDA
• EXPOSURE TO STREET, SIDEWALK AND TRAIL RELATED INCIDENTS
AND THEORIES OF LAW
• THE BASIC ELEMENTS OF A SIDEWALK/STREETS PROGRAM
• DISCUSSION OF SIDEWALK/STREETS INCIDENTS
• CREATING A PLAN OF ACTION TO IMPLEMENT A PROGRAM
• QUESTIONS
10/31/19
2 TORT EXPOSURES
• RISK MANAGEMENT IS THE PROCESS OF IDENTIFYING,
ASSESSING AND CONTROLLING THREATS TO AN
ORGANIZATION'S CAPITAL AND EARNINGS. THESE
THREATS, OR RISKS, COULD STEM FROM A WIDE VARIETY
OF SOURCES, INCLUDING FINANCIAL UNCERTAINTY, LEGAL
LIABILITIES, STRATEGIC MANAGEMENT ERRORS, ACCIDENTS
AND NATURAL DISASTERS.
CALIFORNIA TORT CLAIMS ACT
• BEFORE YOU MAY SUE A PUBLIC ENTITY, YOU MUST FIRST FILE A CLAIM MEETING THE REQUIREMENTS OF THE CALIFORNIA TORT CLAIMS ACT (GOVERNMENT CODE §§ 810- 996.6). THIS LAW APPLIES TO PUBLIC ENTITIES SUCH AS STATE, COUNTY, AND LOCAL
GOVERNMENT AGENCIES OR DEPARTMENTS, AS WELL AS TO GOVERNMENT EMPLOYEES.
• WITH VERY FEW EXCEPTIONS, YOU CANNOT SUE THE GOVERNMENT FOR MONEY
DAMAGES UNLESS YOU HAVE FILED A WRITTEN CLAIM WITHIN THE LEGALLYSPECIFIED TIME PERIOD.
• FILING A CLAIM GIVES THE AGENCY THE OPPORTUNITY TO SETTLE THE CLAIM BEFORE A
LAWSUIT IS FILED AND TO INVESTIGATE THE CLAIM SO THAT IT CAN PROPERLY DEFEND ITSELF, OR TO CORRECT THE CONDITIONS OR PRACTICES THAT LED TO THE CLAIM.
10/31/19
3 THEORIES OF LAW
• DANGEROUS CONDITION OF PUBLIC PROPERTY
• DEFECTIVE DESIGN
• NEGLIGENCE
• MAINTENANCE
DANGEROUS CONDITION OF PUBLIC PROPERTY
• 830. AS USED IN THIS CHAPTER: (A) "DANGEROUS CONDITION" MEANS A CONDITION OF
PROPERTY THAT CREATES A SUBSTANTIAL (AS DISTINGUISHED FROM A MINOR, TRIVIAL OR
INSIGNIFICANT) RISK OF INJURY WHEN SUCH PROPERTY OR ADJACENT PROPERTY IS
USED WITH DUE CARE IN A MANNER IN WHICH IT IS REASONABLY FORESEEABLE THAT IT WILL BE USED. (B) "PROTECT AGAINST" INCLUDES REPAIRING, REMEDYING OR
CORRECTING A DANGEROUS CONDITION, PROVIDING SAFEGUARDS AGAINST A DANGEROUS CONDITION, OR WARNING OF A DANGEROUS CONDITION. (C) "PROPERTY OF A PUBLIC ENTITY" AND "PUBLIC PROPERTY" MEAN REAL OR PERSONAL PROPERTY
OWNED OR CONTROLLED BY THE PUBLIC ENTITY, BUT DO NOT INCLUDE EASEMENTS,
ENCROACHMENTS AND OTHER PROPERTY THAT ARE LOCATED ON THE PROPERTY OF THE PUBLIC ENTITY BUT ARE NOT OWNED OR CONTROLLED BY THE PUBLIC ENTITY.
10/31/19
4 NEGLIGENCE
• DEFINITION. A FAILURE TO BEHAVE WITH THE LEVEL OF CARE THAT SOMEONE OF ORDINARY PRUDENCE WOULD HAVE EXERCISED UNDER THE SAME CIRCUMSTANCES. THE BEHAVIOR USUALLY
CONSISTS OF ACTIONS, BUT CAN ALSO CONSIST OF OMISSIONS WHEN THERE IS SOME DUTY TO ACT (E.G., A DUTY TO HELP VICTIMS OF ONE'S PREVIOUS CONDUCT) • IN CIVIL LAW, NEGLIGENCE REFERS TO ANY FAILURE TO EXERCISE REASONABLE CARE IN ONE’S ACTIONS, RESULTING IN INJURY OR DAMAGE TO ANOTHER PERSON OR PARTY. NEGLIGENCE, THE
MOST COMMON FORM OF CIVIL LAWSUIT, FALLS UNDER THE CATEGORY OF UNINTENTIONAL BEHAVIOR, AS OPPOSED TO INTENTIONAL ACTS OF HARM.
• ACTIVE
• PASSIVE
• SOLE
• CONTRIBUTORY
IMMUNITIES
• SIDEWALK IMMUNITY?
• STREET IMMUNITY ?
This Photo by Unknown Author is licensed under CC BY -NC -ND
10/31/19
5 IMMUNITIES
• NATURAL CONDITION OF UNIMPROVED PUBLIC PROPERTY IMMUNITY (§ 831.2) • TRAIL IMMUNITY (§ 831.4)
• HAZARDOUS RECREATIONAL IMMUNITY (§ 831.7)
• NATURAL CONDITION OF UNIMPROVED PUBLIC PROPERTY IMMUNITY (§ 831.2) • REASONABLE INSPECTION IMMUNITY –GOVERNMENT CODE 835.4 DESIGN
IMMUNITY
• NEITHER A PUBLIC ENTITY NOR A PUBLIC EMPLOYEE IS LIABLE UNDER
THIS CHAPTER FOR AN INJURY CAUSED BY THE PLAN OR DESIGN OF A
CONSTRUCTION OF, OR AN IMPROVEMENT TO, PUBLIC PROPERTY
WHERE SUCH PLAN OR DESIGN HAS BEEN APPROVED IN ADVANCE OF
THE CONSTRUCTION OR IMPROVEMENT BY THE LEGISLATIVE BODY OF
THE PUBLIC ENTITY OR BY SOME OTHER BODY OR EMPLOYEE
EXERCISING DISCRETIONARY AUTHORITY TO GIVE SUCH APPROVAL OR
WHERE SUCH PLAN OR DESIGN IS PREPARED IN CONFORMITY WITH
STANDARDS PREVIOUSLY SO APPROVED, IF THE TRIAL OR APPELLATE
COURT DETERMINES THAT THERE IS ANY SUBSTANTIAL EVIDENCE UPON
THE BASIS OF WHICH (A) A REASONABLE PUBLIC EMPLOYEE COULD
HAVE ADOPTED THE PLAN OR DESIGN OR THE STANDARDS THEREFOR
OR (B) A REASONABLE LEGISLATIVE BODY OR OTHER BODY OR
EMPLOYEE COULD HAVE APPROVED THE PLAN OR DESIGN OR THE
STANDARDS
• THEREFOR.
10/31/19
6 DANGEROUS CONDITION OF PUBLIC PROPERTY
• LEGISLATIVE INTENT
• PREVENT A JURY FROM SIMPLY REWEIGHING THE SAME FACTORS ALREADY
CONSIDERED BY THE PUBLIC ENTITY
REASONABLE
INSPECTION
IMMUNITY,
G.C. 835.4
• GOVERNMENT CODE § 835.4 PROVIDES THAT A PUBLIC
ENTITY IS NOT LIABLE FOR A DANGEROUS CONDITION OF
PUBLIC PROPERTY IF THE PUBLIC ENTITY ESTABLISHES THAT
THE ACTION IT TOOK TO PROTECT AGAINST THE RISK OF
INJURY CREATED BY THE CONDITION OR ITS FAILURE TO
TAKE SUCH ACTION WAS REASONABLE.
• IN ASSESSING REASONABLENESS, WEIGH PROBABILITY AND
GRAVITY OF POTENTIAL INJURY AGAINST PRACTICABILITY
AND COST OF PROTECTING AGAINST SUCH INJURY.
10/31/19
7 WHEN AN IMMUNITY FAILS
• TRIABLE ISSUE OF FACTS
• ACTUAL CONDITION OF PROPERTY
• EXPOSURE TO JOINT AND SEVERAL LIABILITY
CASE
EXAMPLES
• CITY TRIP AND FALL - QUAD
• CITY INTERSECTION FATAL ACCIDENT WITH MOTORCYCLE
DRIVER
• CITY INTERSECTION WITH CALTRANS
• CITY– DANGEROUS CONDITION CREATED BY COUNTY
PROJECT
10/31/19
8 ITEMS TO CONSIDER
• A PUBLIC AGENCY CAN BE SUED BY THE PUBLIC FOR ANY
OPERATION REGARDLESS OF STATUTE?
• TRUE
• FALSE
TOOLS
10/31/19
9 GONZALES V. SAN JOSE
• THIS CASE INVOLVES A PERSONAL INJURY SUIT RESULTING FROM A SLIP AND FALL ACCIDENT THAT OCCURRED ON A SIDEWALK OWNED BY THE CITY OF SAN JOSE.
THE PLAINTIFF SUED NOT ONLY THE CITY OF SAN JOSE, WHO OWNED THE
SIDEWALK SHE FELL ON, BUT ALSO CHARLES HUANG, THE INDIVIDUAL WHOOWNED THE PROPERTY ADJACENT TO AND ABUTTING THE SIDEWALK. THE PLAINTIFF SUED
HUANG ON THE THEORY THAT HE HAD A COMMON LAW DUTY TO HER TO
MAINTAIN THE SIDEWALK IN A NONDANGEROUS CONDITION, AS WELL AS A DUTY IMPOSED UNDER SAN JOSE MUNICIPAL CODE SECTION 14.16.2205, WHICH MAKES
OWNERS OF PROPERTY ABUTTING CITY OWNED SIDEWALKS LIABLE TO THOSEWHO ARE INJURED AS A RESULT OF UNSAFE CONDITIONS ON THE SIDEWALKS.
10/31/19
10 SIDEWALK ORDINANCE
• DUTY TO MAINTAIN SIDEWALKS DOES NOT CREATE A DUTY
OF CARE TO THIRD PARTIES
• ABUTTING OWNERS MAY BE LIABLE TO THIRD PARTIES IF THE
DEFECT IS ATTRIBUTABLE TO THE OWNER- EVEN ABSENT
ORDINANCE
• TO IMPOSE A DUTY ON ADJACENT PROPERTY OWNER
TOWARDS USERS OF SIDEWALKS, AN ORDINANCE MUST
INCLUDE EXPRESS LANGUAGE TO THAT EFFECT.
• GONZALES V. CITY OF SAN JOSE (2004) 125 CAL.APP.4TH
1127, 1136-1139
SIDEWALK
ORDINANCE
• SHIFTING THE DUTY OF MAINTENANCE AND REPAIR TO THE
PRIVATE AND COMMERCIAL PROPERTY OWNER
• REDUCE LIABILITY EXPOSURES BY 50%
• GENERAL LAW & CHARTER CITY ADOPTION OF
ORDINANCE
• ANALYSIS OF EXISTING LAW REGARDING ORDINANCES
• ABUTTING OWNERS DUTY TO MAINTAIN SIDEWALKS
10/31/19
11 Prop 213 prevents drivers injured in a car accident from obtaining damages for their pain and suffering even when the accident was not their fault if they lack car insurance or the car they were driving was not covered by insurance. •If you were the driver of a car that was not
covered by insurance, Proposition 213 applies.
Subject to the exceptions below, in this situation
the driver is entitled to recover only
economic
damages such as lost wages and medical
expenses. The driver may not recover
noneconomic damages, including damages
for pain and suffering, disability, disfigurement,
and emotional distress
.
COMMON EXPOSURES
• WOMAN STRUCK IN CROSSWALK BY VEHICLE AFTER
REPEATED COMPLAINTS OF HAZARDS
• WOMAN STRUCK IN MIDDLE OF STREET WITH AN
UNMARKED CROSSWALK SUFFERS AMPUTATION
• FATHER WATCHING DAUGHTER HIGH SCHOOL SOFTBALL
GAME SUSTAINS CATASTROPHIC INJURY
10/31/19
12 STREETS/ROADS
• IDENTIFY ACCIDENT HISTORY AT INTERSECTIONS
• TRACK COMPLAINTS OF NEAR MISSES OR MAINTENANCE ISSUES • ALERT ALL EMPLOYEES TO WATCH FOR CHANGES IN CONDITION • TRACK THE HISTORY OF DESIGN FOR THE STREET
• MAINTAIN HISTORICAL RECORDS
• DOCUMENT INSPECTIONS AND REPAIRS/MAINTENANCE
SIDEWALKS
• DOCUMENT ALL ACCIDENTS
• CONDUCT FORMAL INSPECTIONS-FREQUENCY SHOULD BE DRIVEN BY USAGE DATA • ADOPT SIDEWALK ORDINANCE
• HAVE A SYSTEM FOR DOCUMENTING COMPLAINTS
• HAVE A DEFINED METHOD FOR DETERMINING MAINTENANCE FREQUENCY • ENCOURAGE EMPLOYEES TO REPORT ISSUES
10/31/19
13 TRAILS
• DOCUMENT ALL ACCIDENTS
• CONDUCT FORMAL INSPECTIONS-FREQUENCY SHOULD BE DRIVEN BY USAGE DATA • ADOPT TRAIL ORDINANCE
• USE EFFECTIVE WARNING SIGNS
• HAVE A SYSTEM FOR DOCUMENTING COMPLAINTS
• HAVE A DEFINED METHOD FOR DETERMINING MAINTENANCE FREQUENCY • ENCOURAGE EMPLOYEES TO REPORT ISSUES
• ENCOURAGE THE PUBLIC TO REPORT ACCIDENTS
PROGRAM MANAGEMENT
• IDENTIFY EXPOSURES BY LOSS HISTORY
• ADOPT AN AGENCY POLICY ON SIDEWALKS/TRAILS/STREETS
• CREATE A SYSTEM FOR RESPONDING TO COMPLAINTS OF POTENTIAL
DANGEROUS CONDITIONS
• ALLOCATE DOLLARS TO MAINTENANCE
10/31/19
14 STREETS/SIDEWALK PROGRAMS
• INVENTORY
• IDENTIFY EXPOSURES BY PRIORITY AREAS AND EXPOSURES
• IDENTIFY A MEANS FOR IDENTIFYING LIKELY HAZARDS AND EXPOSURES • DEVELOP A SCALE FOR EXPOSURES
• UTILIZE A PROFESSIONAL SUBJECT MATTER EXPERT TO ASSIST IN MANAGEMENT
OF THE PROGRAM
• DETERMINE FREQUENCY AND PRIORITY OF INSPECTIONS
• CONDUCT PROACTIVE MITIGATION OF EXPOSURES
EARLY INVESTIGATION OF CLAIMS
• COMPLETE PRE-TORT CLAIM OR IMMEDIATELY AFTER TORT CLAIM IS PRESENTED • CONSIDER IMPLEMENTATION OF EARLY SETTLEMENT PROGRAM –PROVIDE
DESIGNATED PERSON LIMITED AUTHORITY TO SETTLE CLAIMS EVEN BEFORE A TORT CLAIM IS PRESENTED.
• DOCUMENT INCIDENT THOROUGLY
• GATHER ALL HISTORICAL RELATED RECORDS AND PRESERVE IN THE EVENT OF
LITIGATION
10/31/19
15 QUESTION
• AN EFFECTIVE STREET/SIDEWALK/TRAIL PROGRAM WILL ACCOMPLISH THE FOLLOWING:
• A. MAY SIGNIFICANTLY REDUCE THE LIKELIHOOD OF A TORT CLAIM • B. WILL HAVE IMPACTS ON THE COST OF LITIGATION
• C. WILL PROVIDE FOR A DEMONSTRATED EFFORT BY THE AGENCY FOR AGGRESSIVELY MANAGING
THE EXPOSURES
• D. ALL OF THE ABOVE
LESSONS LEARNED
• STREET VISIBILITY ISSUES
• SIDEWALKS IDENTIFIED AS DANGEROUS CONDITION
CREATING TRIP AND FALL HAZARDS
• SIDEWALK INSPECTION PROGRAMS
• IMPORTANCE OF ORDINANCE AND EFFECTIVE PROGRAMS
• REVIEW CONTRACTS WITH OTHER AGENCIES, CALTRANS AND
NEIGHBORS
10/31/19
16 “IF ITS PREDICTABLE IT IS PREVENTABLE”!
BY: GORDON GRAHAM
The greater danger for most of us lies not in
setting our aim too high and falling short;
but in setting our aim too low, and achieving
our mark.
Michelangelo
10/31/19
17 QUESTIONS
BY DAVID CLOVIS
CLOVIS CONSULTANTS AND
ASSOCIATES
[email protected]
925-989-3964
This Photo by Unknown Author is licensed under CC BY
Landscaping and Lighting
Maintenance Districts Funding
Item D.2
David Gassaway, City Manager 1Page 122 of 127
2 Thacker v. City of Fairfield
Overview
• Lawsuit filed by LLMD No. 7 – Rolling Hills property owner citing invalid assessment levies Court Ruling
• Increases to assessments without ballot proceedings after July 1, 1997 (Prop 218 implementation) are invalid
Impacts
• LLMD assessments adjusted down to FY 1996-1997 rates in six LLMDs • Reduced revenue ($355,000 total or 10-35% per district) • Property owner refunds
2Page 123 of 127
3 City Contributions to LLMDs
Overview
• Prior to Prop 218, City Council set policy for General Fund contributions to LLMDs • Resolution No. 1991-213b established General Fund contributions to LLMDs for:
• City administrative overhead
• Per lot credit for interior streetlights
• 100% of costs for arterial streetlights
• 50% of costs for arterial medians
• Resolution No. 2003-176 limited FY 2004-2005 General Fund contributions to $156,000 + CPI ($274,026 in FY 2024-2025 dollars)
3Page 124 of 127
4 City Contributions to LLMDs (continued)
Conflicts
• General Fund contributions stated in Resolution No. 1991-213b are incompatible with General Fund contribution limits established in Resolution No. 2003-176 due to inflation
• Actual FY 2025-2026 General Fund contributions exceed limits established in Resolution No. 2003-176
$471,601 cash transfers
Plus non-cash contributions (streetlight credits and
exemption for admin overhead costs)
• In addition to General Fund contribution, the City pays $60,869 in assessments for City-owned parcels
4Page 125 of 127
5 Council Action
Recommendation
• Provide direction for the six LLMDs affected by court ruling • Repeal Resolution Nos. 1991-213b and 2003-176
• Adopt new resolution setting new policy for General Fund contributions to LLMDs 5Page 126 of 127
Thank you!
6