Insurance claim files are overflowing with losses involving individuals injured when they trip and fall over cracked, broken, or uneven municipal sidewalks. In many cases involving sidewalk defects, the injury is a direct result of a municipality failing to institute and/or conscientiously follow its own policies regarding inspection, maintenance, and repair of miles of sidewalks. Understanding the potential liability of the municipality and how and when a subrogated insurance company can subrogate against it when such injuries occur is essential to any successful subrogation program. It is equally important for liability claims professionals to be able to know when to settle and when to draw a line in the sand. The reality is, however, that learning and applying the complexity of a wide variety of laws and ordinances across thousands of municipalities nationwide is easier said than done.
Whether a municipality can be held liable for sidewalk defects depends heavily on the state you are in and, in many cases, the specific city or municipality you are dealing with. Many cities have charters which provide limitations on notice requirements or establish benchmarks for liability resulting from cracked and uneven sidewalks. All government entities enjoy some level of immunity from being sued. For a chart detailing the specific laws of each state with regard to municipal, county, and local government immunity and tort liability, see HERE.
“Governmental immunity” concerns itself with the various legal doctrines or statutes that provide municipalities, local government entities, and political subdivisions immunity from tort-based claims, as well as exceptions from and limitations to that immunity. Generally, a state government is immune from tort suits by individuals under the doctrine of sovereign immunity. Local governments, municipalities (cities), counties, towns, and other political subdivisions of the state, however, are immune from tort suits by virtue of governmental immunity. This is because the state grants them immunity, usually in the state’s Constitution.
In the U.S., however, most government entities, including municipalities, waive their immunity in certain instances, such as the operation of motor vehicles or for “proprietary” functions as opposed to “governmental” functions. Most municipalities also waive immunity for certain types of defects in sidewalks, but limit both the circumstances under which recovery can be made. As an example, let’s look at the law from a few states on this subject.
Texas
In Texas, Texas Civil Practice and Remedies Code § 102.022 provides that a municipality can be held liable for two types of defects in sidewalks:
- “special defects”, and
- “premise defects”
A “special defect” is a condition that presents an unexpected and unusual danger to ordinary users. A “premise defect”, on the other hand, is a long-standing, routine or permanent defect. With special defects, the municipality can be liable only if it knew or should have known of the hazard. With premise defects, the municipality can be liable only if they had actual knowledge of the defect. Further, a “design defect” is something dangerous about the way the sidewalk was designed as opposed to a change that occurred at a later time. With design defects, the act of designing the sidewalk is a discretionary act left to the municipality and they are immune. City of Austin v. Sliverman, M.D., 2009 WL 1423956 (Tex. App.–Austin 2009). What constitutes a design defect varies. City of Grapevine v. Roberts, 946 S.W.2d 841 (Tex. 1997) (crushed and crumpled sidewalk: City of El Paso v. Bernal, 986 S.W.2d 610 (Tex. 1999) (eroded spot in the sidewalk); City of Richardson v. Justus, 329 S.W.3d 662 (Tex. App.–Dallas 2010) (sidewalk separation). Some examples of special defects are: City of Austin v. Rangel, 184 S.W.3d 377 (Tex. App. – Austin 2006, no pet.) (uncovered meter box) and City of El Paso v. Chacon, 148 S.W.3d 417, 425 (Tex. App.—El Paso 2004, pet. denied) (hole in sidewalk left from utility pole).
Michigan
Some states assess the liability of municipalities based on the size and depth of uneven sidewalks, rationalizing that sidewalks that are less than a certain number of inches uneven are not hazards and tripping would be the fault of the injured party. In Michigan, M.C.L.A. § 691.1402a(2a)(1) provides that a municipality must “maintain the sidewalk in reasonable repair.” Subsection (2) says that a municipality is not liable for breach of their duty to maintain a sidewalk “…unless the plaintiff proves that at least 30 days before the occurrence of the relevant injury, death, or damage, the municipal corporation knew or, in the exercise of reasonable diligence, should have known of the existence of the defect in the sidewalk.” The statute also provides that there is a presumption that it has maintained the sidewalk in reasonable repair.
Michigan sidewalks are included in the definition of “highway” under their Governmental Tort Liability Act. The Act says that “highway includes a bridge, sidewalk, trailway, crosswalk, or culvert on the highway.” M.C.L.A. § 691.1401(c). As a result, sidewalks are not their own exception, but rather fall under the “public highways exception” to governmental immunity. The inclusion of sidewalks within the definition of “highway” gives the appearance that the governmental agency responsible for maintaining the highway or roadway would also hold liability for maintaining any accompanying sidewalk, given that “each governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.”
Section 691.1402(1) for years had imposed liability on municipalities for injuries resulting from defective sidewalks, i.e., sidewalks the municipality has failed to maintain in reasonable repair. The statute provided that if this defect constituted a discontinuity of less than two inches, a rebuttable inference arises that the municipality maintained the sidewalk in reasonable repair. In 2010, however, the Michigan Supreme Court in Robinson v. City of Lansing, 782 N.W.2d 171 (Mich. 2010) declared that this rule only applied to sidewalks which were next to “county highways.” Most recently, Michigan Governor Snyder signed HB 4589, which reversed the effect of the Robinson decision which held that a statute establishing that a government is liable only for a sidewalk defect or “discontinuity” greater than two inches applies only to county roads. The bill extended this to a sidewalk adjacent to “any municipal, county or state” highway, street or road.
California
California does not apply the “two-inch” rule or similar blanket rule as some other states do in this area. Instead, they tend to look at the “defect as a whole” while the size of the defect matters only secondarily. While we love charts and easy answers, California is the last place to look for simplicity in this area.
Several California decisions have sidewalk defects of up to one and one-half inches trivial as a matter of law. In Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977 (1953), the court held that in the absence of aggravating conditions, differential of less than half an inch is deemed trivial. In Caloroso v. Hathaway, 19 Cal. Rptr.3d 254 (Cal. App. 2004), an elevation difference of under half an inch was declared “trivial” as a matter of law. In Fielder v. City of Glendale, 71 Cal.App.3d 719 (1977), a three-fourths inch irregularity in a sidewalk, without evidence of other factors that would have allowed reasonable minds to conclude that it was dangerous, constituted a defect that was trivial as a matter of law. In Nicholson v. City of Los Angeles, 54 P.2d 725 (Cal. 1936), a one and one-half inch elevation difference, without more, was held not to be dangerous as a matter of law. In Whiting v. City of National City, 69 P.2d 990 (Cal. 1937), the court said that sidewalks cannot be maintained in a perfect condition and that minor defects are bound to exist. An elevation difference of a maximum of three-fourths of an inch was held to be minor and not of such dangerous character as to be constructive notice to city. However, it is also true that as “the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” Fielder, supra. Moreover, size alone is not determinative of whether a rut presents a dangerous condition. It is just one of several factors, albeit “[t]he most important of these factors”, for determining whether a given defect may be deemed trivial as a matter of law. Thomas, et al., Premises Liability in California, § 3:46 at p. 222. California also considers the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, and whether there is evidence anyone else has been injured by the same defect. Fielder, supra.
Therefore, California seemingly applies the “Trivial Defect Rule”, which states that a vertical change in elevation of a walkway one inch (1″) or less (or possibly 1.5″ or less) alone is generally a trivial defect as a matter of law unless the totality of circumstances, i.e., other aggravating surrounding factors, indicates otherwise. Under appropriate circumstances, therefore, a court may determine, as a matter of law, that a given walkway defect is trivial. However, it cannot make that determination if competing and conflicting evidence of the size, nature, and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care. Kasparian v. AvalonBay Communities, Inc., 156 Cal.App.4th 11, 66 Cal.Rptr.3d 885 (2007). The Trivial Defect Rule is not an affirmative defense, but rather, an aspect of duty that plaintiff must plead and prove.
Persons who maintain walkways–whether public or private–are not required to maintain them in absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. In Ursino v. Big Boy Restaurants, 192 Cal.App.3d 394 (1987), a raised edge of three-fourths inch was trivial as a matter of law. Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents. Johnson v. City of Palo Alto, 199 Cal.App.2d 148 ( 1962), superseded on other grounds by statute, Brown v. Poway Unified School Dist. 4 Cal.4th 820, 831 (1993). Whether a condition is dangerous is almost always considered a question of fact that may be resolved as a question of law only “if reasonable minds can come to but one conclusion.” Davis v. City of Pasadena, 42 Cal.App.4th 701 (1996). Therefore, a “trivial defect” usually means defects of 1″ to 1.5″ or less. There are undoubtedly a lot of serious injury cases involving defects as “trivial” as this where liability does not attach and angry plaintiffs go uncompensated, giving a whole new meaning to the title of the 2001 American musical comedy-drama “Hedwig and The Angry Inch.”
New York
New York has no minimum height test for hazards in sidewalks or public walkways. In Thomas v. City of New York, 301 AD2d 387 (N.Y. 2003), an injury was caused by a metal grating barely raised above the adjacent public sidewalk. The court said that there is no “minimal dimension test,” in the absence of other contributing factors, although the differential in height between the alleged defect and the sidewalk may “loom large” in determining whether the defect poses a hazard of sufficient magnitude to be actionable. Trincere v. County of Suffolk, 688 N.E.2d 489 (N.Y. 1997). Because the plaintiff failed to adduce evidence sufficient to raise a triable issue as to whether the alleged defect, although small, nonetheless possessed the characteristics of a “trap or snare” or was otherwise actionable, the defendant’s Motion for Summary Judgment was granted.
Ohio
A raised portion of a curb or sidewalk which is less than two inches in height is presumed to be “insubstantial” as a matter of law. This “two-inch” presumption may be rebutted by showing attendant circumstances sufficient to render the defect substantial. Long v. Village of Covington, 2002 WL 538857 (Ohio 2002).
Rhode Island
Rhode Island requires municipalities to merely keep sidewalks reasonably safe and they need not anticipate every possibility of an accident. Grass v. Seattle, 171 P. 533 (Wash. 1918) (1 1/8 inches).
Colorado
In Denver v. Burrows, 227 P. 840 (Colo. 1924), a defect of 1 3/8 inches was involved. The court said that the existence of such an irregularity was held as a matter of law not to constitute negligent upkeep by the town.
The duty to maintain a sidewalk, public or private, varies from city to city and state to state. In some places, the sidewalk is public property and maintenance and repair is the responsibility of local government. Depending upon local law, either property owners or local municipalities (the city, county, or state) may be liable for injuries sustained on public sidewalks. In some areas, the sidewalk is not considered private property so a homeowner cannot be sued for any injury sustained on the sidewalk.
Maintenance and repair of private sidewalks is generally the responsibility of the owner of the sidewalk. This could be an individual, a business, or a homeowners’ association. When an injury occurs as the result of improper maintenance or repair, local ordinances govern from whom an injured party may recover. Regardless who has the responsibility to maintain and keep sidewalks in a safe condition, subrogation professionals must see to it that proper investigation is conducted. Without photographs, statements, or other evidence of the dangerous condition (measurements are important), it may be impossible to show that a defect which is later repaired or altered was sufficient to constitute a dangerous condition.
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
