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

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

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

Sidewalk Claims for PLAN 850+ Total Claims 850+ Total Claims $4.5 Million Paid $4.5 Million Paid 14% of All Claims (2 nd highest cause) 14% of All Claims (2 nd highest cause) 7% of All Paid (5 th highest severity) 7% of All Paid (5 th highest severity) $7,782 Average Paid ‘97-04 $7,782 Average Paid ‘97-04 Record Amount in 1998: $580,000 Record Amount in 1998: $580,000 Recent Case $250,000 + defense Recent Case $250,000 + defense

Cause of Loss Comparison

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. 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. 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.

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. 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. 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. San Jose updated their ordinance in response.

The Latest News Gonzales v. City of San Jose (12/6/04) – first appellate case regarding new ordinance. 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. 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. 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.

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

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

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

Current Situation With No Ordinance Property owner has duty to MAINTAIN sidewalk except if City created the problem Property owner has duty to MAINTAIN sidewalk except if City created the problem CA Streets & Highways Code § 5610 CA Streets & Highways Code § 5610 Property owner is liable for damages arising from their negligence 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 City is liable for damages due to property owner’s failure to maintain and for hazards City creates

Sidewalk Risk Management “Best Practices” Person who enjoys the most benefit responsible to maintain (current code) 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 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) 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 More eyes looking for hazards is more effective than City having to inspect and maintain large areas of sidewalk

PLAN/ABAG Member Response Most have passed basic ordinances or enforce the state code regarding maintenance Most have passed basic ordinances or enforce the state code regarding maintenance Two members have liability transfer ordinance Two members have liability transfer ordinance 11 cities in Contra Costa County have new ordinance 11 cities in Contra Costa County have new ordinance Attitude toward risk varies by member Attitude toward risk varies by member Some are “Tree Cities” with problems created by trees they planted and protect Some are “Tree Cities” with problems created by trees they planted and protect Some have good maintenance programs & some don’t Some have good maintenance programs & some don’t PLAN is offering sidewalk repair grants! PLAN is offering sidewalk repair grants!

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

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

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

Comments/Questions? Thank You!