Sidewalk Ordinance Workshop

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Sidewalk OrdinanceWorkshop

• Presented by
• Tim Schmal
• Burton, Volkmann Schmal
• Marcus Beverly
• ABAG PLAN Corp.
• April 14, 2005
• Los Altos, CA

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Objectives

• Provide attendees with a summary of the
• Problem
• History, and
• Latest Developments
• in the techniques used to make those persons
  responsible for maintaining sidewalks liable for
  damages that result from failure to maintain.

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The Problem

• Varies by member
• Aging infrastructure
• Poor street tree selection
• Rural feel v. developed areas
• Lack of documented inspections
• Budgets strained for repairs
• Losses are frequent and add up
• Most claims are within member deductible

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Sidewalk Claims for PLAN

• 850 Total Claims
• 4.5 Million Paid
• 14 of All Claims (2nd highest cause)
• 7 of All Paid (5th highest severity)
• 7,782 Average Paid 97-04
• Record Amount in 1998 75 _at_ 580,000
• Recent Case 250,000 defense

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Cause of Loss Comparison
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The History

• Common Law adjoining property owner had no duty
  to maintain sidewalks and therefore no liability
  for mere failure to maintain. Could be liable
  for other acts of negligence.
• Streets and Highways Code 5610 (1941) property
  owner has duty to maintain adjacent sidewalk and
  can be liable to the municipality if it is forced
  to repair or maintain. However, owner not liable
  for damages to the public.

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The History

• Williams v. Foster (1989) city of San Jose took
  position that their ordinance, modeled on SH
  Code 5610, imposed liability to the general
  public on property owner if damages resulted from
  failure to maintain.
• Trial court agreed, appellate court said no, but
  stated liability could be shifted if spelled out
  in the ordinance.
• San Jose updated their ordinance in response.

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The Latest News

• Gonzales v. City of San Jose (12/6/04) first
  appellate case regarding new ordinance.
• Trial court said ordinance pre-empted by state
  law. San Jose appealed.
• Appeals court reversed state law only addresses
  liability of public entities and employees, and
  dealt only with owners liability to the
  municipality and not to the general public.

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The Latest News Gonzales v. City of San Jose
opinion

• Ordinance does not absolve San Jose of liability
  for dangerous conditions on sidewalks
• Both city and property owner could be liable
• Serves important public policy purpose
• Provides an additional level of responsibility
• Owners often in the best position to quickly
  identify and address potentially dangerous
  conditions
• Provides incentive for property owners to maintain

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Impact of S.J. Ordinance

• Expands property owners responsibility to
  include repairing hazards created by others
• Expands owners liability to include damages
  arising from failure to maintain
• Provides the City an avenue to transfer risk of
  damages for failure to maintain sidewalks

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Benefits of Ordinance

• Clarifies responsibilities of property owner
• Places risk of failure to maintain where it
  belongs - on person responsible
• Provides incentive for owner to report or repair
  hazards
• Preserves city budget staff for more critical
  needs

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Current Situation With No Ordinance

• Property owner has duty to MAINTAIN sidewalk
  except if City created the problem
• CA Streets Highways Code 5610
• Property owner is liable for damages arising from
  their negligence
• City is liable for damages due to property
  owners failure to maintain and for hazards City
  creates

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Sidewalk Risk Management Best Practices

• Person who enjoys the most benefit responsible to
  maintain (current code)
• Person responsible for maintenance is liable if
  fail to maintain (not current code)
• Person most able to recognize and respond to
  hazard is responsible to do so (not code)
• More eyes looking for hazards is more effective
  than City having to inspect and maintain large
  areas of sidewalk

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PLAN/ABAG Member Response

• Most have passed basic ordinances or enforce the
  state code regarding maintenance
• Two members have liability transfer ordinance
• 11 cities in Contra Costa County have new
  ordinance
• Attitude toward risk varies by member
• Some are Tree Cities with problems created by
  trees they planted and protect
• Some have good maintenance programs some dont
• PLAN is offering sidewalk repair grants!

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PLAN Recommended Best Practices

• Local Ordinance at least as broad as SH code
• Documented inspection program
• Active maintenance program
• Warn, restrict, repair, remove
• Notify property owner of maintenance obligation
• Follow up, repair and bill if needed
• Offer incentives
• Liability transfer ordinance should be considered
  by Council

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Pros/Cons

• Fair to shift liability arising from city
  property to owner who has no say in how built or
  used?
• Shifting liability to person who has duty to
  maintain is done all the time in contracts
• City still retains property owner liability
• Insurance companies prepared to shoulder?
• One more reason to cancel?
• One more pot of money for plaintiffs?
• How should risk be paid for?
• By taxpayers generally or by owner and insurance?
• City not doing its duty if doesnt transfer?

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Bottom Line

• You are transferring liability to property owner
  for failure to maintain
• NOT a free pass on liability, duties
• Risk management best practice have obligation
  to transfer risk?
• Should be part of public education and outreach
  program
• Result is a more effective program for
  maintaining sidewalks and reducing claims

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Comments/Questions?

• Thank You!