Authored Articles & Publications Oct 14, 2014

Cities Can Offset Cracked Sidewalk Liability

BB&K Attorney Jessica Lomakin Writes in the Daily Journal About Options Municipalities Have in Defending Against Costly “Trip and Fall” Accidents on Public Sidewalks

By Jessica K. Lomakin

Despite procedural safeguards designed. by the state Legislature to prevent municipalities from becoming the insurer of public ways against all defects, California cities continue to become engaged in litigation arising out of "trip and fall" accidents along its miles and miles of public sidewalks. While excessive litigation against private citizens and corporations is problematic, excessive litigation against California's public entities has devastating potential. The immunities afforded to such entities by the Government Claims Act, codified at Government Code Section 810 et seq., occasionally prove inadequate in protecting against the expenditure of tax payer dollars when defending dangerous condition of public property litigation.

Generally, municipalities are not liable for dangerous conditions of public property where a condition does not pose a substantial (as opposed to trivial) risk of injury to foreseeable users when used with due care. Government Code Sections 830 and 830.2. Yet, in the case of height differentials, cracks, spalling and other defects commonly afflicting city sidewalks, to what extent do private property owners owe a duty to pedestrians and bicyclists for the condition of public sidewalks immediately adjacent to or abutting their property? Streets and Highways Code Section 561o, which imposes a duty of maintenance and repair upon private property owners, often goes unused and even unknown by many public agencies.

In relevant part, Section 5610 provides that, "owners of lots or portions of lots fronting on any portion of a public street ... shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property.' While it is notable that Section 561.0 does not impose any liability for personal injuries to third parties for a condition of a public sidewalk upon a private property owner, it does impose a duty upon a private property owner to share in the cost of maintaining the adjacent sidewalk In other words, Section 5610 can be utilized by municipalities to help offset the cost of repair to and maintenance of old, damaged, worn out or defective sidewalks, thereby reducing overall costs to the municipalities.

To read the full article in the Daily Journal, which ran Oct. 14, 2014, click here (subscription required).

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