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
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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
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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
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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
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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
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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?
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10 True or False?
• You can avoid “notice” by not performing inspections.
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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?
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12 Duty to Maintain
• A public entity has a non-delegable duty to maintain
their property in a safe condition.
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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
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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.
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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
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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
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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
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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
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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)
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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.”
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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.
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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”
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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
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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
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