Sidewalk Ordinance Workshop

1. Sidewalk OrdinanceWorkshop Presented by Tim Schmal Burton, Volkmann & Schmal & Marcus Beverly ABAG PLAN Corp. April 14, 2005 Los Altos, CA

2. 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.

3. 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

4. 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 @ $580,000 • Recent Case $250,000 + defense

5. Cause of Loss Comparison

6. 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.

7. The History • Williams v. Foster (1989) – city of San Jose took position that their ordinance, modeled on S&H 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.

8. 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 owner’s liability to the municipality and not to the general public.

9. The Latest NewsGonzales 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

10. Impact of S.J. Ordinance • Expands property owner’s responsibility to include repairing hazards created by others • Expands owner’s liability to include damages arising from failure to maintain • Provides the City an avenue to transfer risk of damages for failure to maintain sidewalks

11. 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

12. 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 owner’s failure to maintain and for hazards City creates

13. 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

14. 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 don’t • PLAN is offering sidewalk repair grants!

15. PLAN Recommended Best Practices • Local Ordinance at least as broad as S&H 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

16. 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 doesn’t transfer?

17. 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

18. Comments/Questions? Thank You!