Liability for Poorly Maintained Municipal Sidewalks

Sidewalks play a vital role in the total transportation needs of a municipality and they deserve our adequate attention. Many municipal officials face the recurring question of what to do about the poor condition of the sidewalks in their municipalities.?????

There is no federal or state duty for a municipality to provide sidewalks. Providing sidewalks is a discretionary function of a municipality. Still, once they have been installed, municipal officials have a clear and present duty to maintain them in a reasonably safe manner.

This does not mean, however, that the city is an insurer of the sidewalk network. In other words, the municipality is not liable per se, simply because an injury occurs on the sidewalk. It depends on the facts and circumstances of the injury.???????

Sound risk management begins by recognizing the existence of a legal duty and understanding of the issues that create loss exposure for the municipality. The risk manager must fulfill the legal responsibility and reduce the loss exposure.?

The bedrock basis of liability for sidewalks can be found in the Tennessee Governmental Tort Liability Act at T.C.A. 29-20-203. The statute is as follows:

Removal of immunity for injury from unsafe streets and highways – Notice required.??

1. Immunity from suit of a governmental entity shall be removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. The term “street” and “highway” shall include traffic control devices thereupon.?
2. This section shall not apply unless constructive notice and/or actual notice to the governmental entity of such condition be alleged and proved in addition to the procedural notice required by 29-20-302. [Acts 1973, ch. 345, section 8; T.C.A., 23-3309; Acts 1983, ch. 199, section 1.]

Historically, the courts have held that constructive notice is rather easily shown by the claimant. Simply put, constructive notice means you know or should have known of the defective condition.???

Do owners of adjacent property have any responsibility? It may be possible to transfer the maintenance to landowners, but generally, the liability for injury remains with the municipality. In situations where some responsibility is transferred to the adjacent property owner, injuries arising from improper maintenance may be a basis for suit against the municipality and adjacent landowner. Therefore, most municipalities find too many political obstacles in switching maintenance to the private sector. The issue of who has what degree of liability is ultimately left to the courts.?

Not even the soundest risk management program can provide total protection from liability. The goal of the risk manager should be to ensure public safety, reduce the likelihood of claims and avoid costly litigation. Good loss control will pay for itself by reducing the frequency and severity of claims.

Sidewalk hazards should be identified, exposures evaluated and loss control measures put in place with continuous monitoring. Once a municipality is on notice of a sidewalk hazard, it is sound risk management practice to warn the public of the hazard until permanent repairs can be completed. This can be done by putting out cones or other appropriate warning devices.?

Municipal officials struggle with spreading funds to as many needful resources as possible. Although sidewalks rarely seem to be high on the list, they should hold an important place in the municipality’s risk management program.?

In 1998, the Tennessee Supreme Court handed down a ruling on a troublesome case for Tennessee cities on the issue of sidewalks. The case can be found at Coln v. City of Savannah, 966 S.W. 2d 34, (Tenn. 1998). This case is analyzed as follows:

Facts:

• In June of 1992, the City of Savannah contracted to have decorative brick placed on a bed of sand in front of the city hall building. The surface was slightly below the adjacent sidewalk leading to the city hall.?
• Plaintiff, Hazel Coln, 68 years of age, tripped on the lip of the concrete sidewalk adjacent to the decorative brick. She sustained injuries to her wrist and arm. The designer of the sidewalk testified there was a 3/8-inch deviation between the two areas due to settling.?
• The city testified it knew of the deviation and took no corrective action because the deviation seemed minimal and the defect was “open and obvious” to persons using the sidewalk.?
• Plaintiff alleged the city had created a dangerous condition for persons using the sidewalk system of the city.?

Issue:

Was the risk of harm posed by the deviation of the sidewalk open and obvious to pedestrians, or did it create a foreseeable risk of harm?

Holding:

• The court found the city owed a duty to the plaintiff and that a foreseeable risk of harm was posed to pedestrians entering city hall. Although the deviation may be open and obvious to some degree, it is significant that the hazard existed in an area used to access city hall and the city had actual knowledge of the hazard.?
• The court stated the risk of harm was unreasonable despite its open and obvious nature, and the foreseeability and gravity of harm therefore outweighed the burden imposed in protecting that harm.?

Analysis:

• This case is significant in that it diminishes the “open and obvious rule,” which had been a sound defense to similar claims in the past.?
• The mere fact that a hazard is open and obvious does not relieve a city from liability. Cities should take affirmative steps to identify and correct hazards in their sidewalk systems.?

Authored By: Paul Chambliss, loss control consultant, Public Entity Partners