Sidewalk OrdinanceSidewalk OrdinanceWorkshop Workshop

Presented byPresented byTim SchmalTim Schmal

Burton, Volkmann & Schmal Burton, Volkmann & Schmal & &

Marcus BeverlyMarcus BeverlyABAG PLAN Corp.ABAG PLAN Corp.

April 14, 2005April 14, 2005Los Altos, CALos Altos, CA

ObjectivesObjectives

Provide attendees with a summary of the Provide attendees with a summary of the ProblemProblem History, and History, and Latest Developments Latest Developments

in the techniques used to make those persons in the techniques used to make those persons responsible for maintaining sidewalks liable for responsible for maintaining sidewalks liable for damages that result from failure to maintain. damages that result from failure to maintain.

The ProblemThe Problem

Varies by memberVaries by member Aging infrastructureAging infrastructure Poor street tree selectionPoor street tree selection Rural feel v. developed areasRural feel v. developed areas Lack of documented inspectionsLack of documented inspections Budgets strained for repairsBudgets strained for repairs

Losses are frequent and add upLosses are frequent and add up Most claims are within member deductibleMost claims are within member deductible

Sidewalk Claims for PLANSidewalk Claims for PLAN

850+ Total Claims850+ Total Claims $4.5 Million Paid$4.5 Million Paid 14% of All Claims (214% of All Claims (2ndnd highest cause) highest cause) 7% of All Paid (57% of All Paid (5thth highest severity) highest severity) $7,782 Average Paid ‘97-04$7,782 Average Paid ‘97-04 Record Amount in 1998: 75 @ $580,000Record Amount in 1998: 75 @ $580,000 Recent Case $250,000 + defenseRecent Case $250,000 + defense

Cause of Loss ComparisonCause of Loss Comparison

Sidewalk$4,528,035

14%FQ/7%$

Water Damage

$5,925,4264%/9%

All Police$8,701,883

4%/13%

All Auto$2,511,532

7%/4%

Road Design$6,135,928

2%/9%

Landslide$3,458,920

0.3%/5%

Sewerline$11,471,435

15%/18%

The HistoryThe History

Common LawCommon Law – adjoining property owner – adjoining property owner had no duty to maintain sidewalks and had no duty to maintain sidewalks and therefore no liability for mere failure to therefore no liability for mere failure to maintain. Could be liable for other acts of maintain. Could be liable for other acts of negligence.negligence.

Streets and Highways Code Streets and Highways Code §§5610 (1941) – 5610 (1941) – property owner has duty to maintain adjacent property owner has duty to maintain adjacent sidewalk and can be liable to the municipality sidewalk and can be liable to the municipality if it is forced to repair or maintain. However, if it is forced to repair or maintain. However, owner not liable for damages to the public.owner not liable for damages to the public.

The HistoryThe History

Williams v. Foster (1989)Williams v. Foster (1989) – city of San Jose – city of San Jose took position that their ordinance, modeled on took position that their ordinance, modeled on S&H Code S&H Code §§5610, imposed liability to the 5610, imposed liability to the general public on property owner if damages general public on property owner if damages resulted from failure to maintain. resulted from failure to maintain. Trial court agreed, appellate court said no, but Trial court agreed, appellate court said no, but

stated liability could be shifted if spelled out in stated liability could be shifted if spelled out in the ordinance.the ordinance.

San Jose updated their ordinance in response. San Jose updated their ordinance in response.

The Latest NewsThe Latest News

Gonzales v. City of San Jose (12/6/04) – Gonzales v. City of San Jose (12/6/04) – first first appellate case regarding new ordinance.appellate case regarding new ordinance.

Trial court said ordinance pre-empted by state Trial court said ordinance pre-empted by state law. San Jose appealed.law. San Jose appealed.

Appeals court reversed – state law only Appeals court reversed – state law only addresses liability of public entities and addresses liability of public entities and employees, and dealt only with owner’s employees, and dealt only with owner’s liability to the municipality and not to the liability to the municipality and not to the general public. general public.

The Latest NewsThe Latest News Gonzales v. City of San Jose opinionGonzales v. City of San Jose opinion

Ordinance does not absolve San Jose of liability for Ordinance does not absolve San Jose of liability for dangerous conditions on sidewalksdangerous conditions on sidewalks

Both city and property owner could be liableBoth city and property owner could be liable Serves important public policy purposeServes important public policy purpose

Provides an additional level of responsibilityProvides an additional level of responsibility Owners often in the best position to quickly identify and Owners often in the best position to quickly identify and

address potentially dangerous conditionsaddress potentially dangerous conditions Provides incentive for property owners to maintainProvides incentive for property owners to maintain

Impact of S.J. OrdinanceImpact of S.J. Ordinance

Expands property owner’s responsibility to Expands property owner’s responsibility to include repairing hazards created by othersinclude repairing hazards created by others

Expands owner’s liability to include damages Expands owner’s liability to include damages arising from failure to maintainarising from failure to maintain

Provides the City an avenue to transfer risk of Provides the City an avenue to transfer risk of damages for failure to maintain sidewalks damages for failure to maintain sidewalks

Benefits of OrdinanceBenefits of Ordinance

Clarifies responsibilities of property ownerClarifies responsibilities of property owner Places risk of failure to maintain where it Places risk of failure to maintain where it

belongs - on person responsiblebelongs - on person responsible Provides incentive for owner to report or Provides incentive for owner to report or

repair hazards repair hazards Preserves city budget & staff for more Preserves city budget & staff for more

critical needscritical needs

Current Situation With No Current Situation With No OrdinanceOrdinance

Property owner has duty to MAINTAIN Property owner has duty to MAINTAIN sidewalk except if City created the problemsidewalk except if City created the problem CA Streets & Highways Code § 5610CA Streets & Highways Code § 5610

Property owner is liable for damages arising Property owner is liable for damages arising from their negligencefrom their negligence

City is liable for damages due to property City is liable for damages due to property owner’s failure to maintain and for hazards owner’s failure to maintain and for hazards City creates City creates

Sidewalk Risk Management Sidewalk Risk Management “Best Practices”“Best Practices”

Person who enjoys the most benefit responsible Person who enjoys the most benefit responsible to maintain (current code) to maintain (current code)

Person responsible for maintenance is liable if Person responsible for maintenance is liable if fail to maintain (not current code) fail to maintain (not current code)

Person most able to recognize and respond to Person most able to recognize and respond to hazard is responsible to do so (not code)hazard is responsible to do so (not code)

More eyes looking for hazards is more effective More eyes looking for hazards is more effective than City having to inspect and maintain large than City having to inspect and maintain large areas of sidewalk areas of sidewalk

PLAN/ABAG Member ResponsePLAN/ABAG Member Response

Most have passed basic ordinances or enforce the Most have passed basic ordinances or enforce the state code regarding maintenancestate code regarding maintenance

Two members have liability transfer ordinanceTwo members have liability transfer ordinance 11 cities in Contra Costa County have new ordinance11 cities in Contra Costa County have new ordinance Attitude toward risk varies by memberAttitude toward risk varies by member Some are “Tree Cities” with problems created by Some are “Tree Cities” with problems created by

trees they planted and protecttrees they planted and protect Some have good maintenance programs & some Some have good maintenance programs & some

don’t don’t PLAN is offering sidewalk repair grants! PLAN is offering sidewalk repair grants!

PLAN RecommendedPLAN Recommended Best Practices Best Practices

Local Ordinance at least as broad as S&H codeLocal Ordinance at least as broad as S&H code Documented inspection programDocumented inspection program Active maintenance program Active maintenance program

Warn, restrict, repair, removeWarn, restrict, repair, remove Notify property owner of maintenance obligationNotify property owner of maintenance obligation Follow up, repair and bill if needed Follow up, repair and bill if needed Offer incentives Offer incentives

Liability transfer ordinance should be Liability transfer ordinance should be considered by Council considered by Council

Pros/ConsPros/Cons Fair to shift liability arising from city property to owner Fair to shift liability arising from city property to owner

who has no say in how built or used?who has no say in how built or used? Shifting liability to person who has duty to maintain is done all Shifting liability to person who has duty to maintain is done all

the time in contracts the time in contracts City still retains property owner liabilityCity still retains property owner liability

Insurance companies prepared to shoulder? Insurance companies prepared to shoulder? One more reason to cancel?One more reason to cancel? One more pot of money for plaintiffs?One more pot of money for plaintiffs?

How should risk be paid for?How should risk be paid for? By taxpayers generally or by owner and insurance?By taxpayers generally or by owner and insurance? City not doing its duty if doesn’t transfer? City not doing its duty if doesn’t transfer?

Bottom LineBottom Line You are transferring liability to property owner for You are transferring liability to property owner for

failure to maintain failure to maintain NOTNOT a free pass on liability, duties a free pass on liability, duties Risk management best practice – have Risk management best practice – have obligationobligation to to

transfer risk?transfer risk? Should be part of public education and outreach Should be part of public education and outreach

program program Result is a more effective program for maintaining Result is a more effective program for maintaining

sidewalks and reducing claimssidewalks and reducing claims

Comments/Questions?Comments/Questions?

Thank You!Thank You!