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.
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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
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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