Sidewalk Liabilities for Municipalities

By William L. Doerler

For Pennsylvania and Delaware municipalities, February brought bad news about sidewalk liability. The Supreme Courts in both states clarified conflicting decisions from lower courts by holding municipalities responsible for risks associated with the condition of sidewalks.

On February 6, 2004, the Supreme Court of Delaware issued an en banc decision in Schadt v. Latchford which invalidated the City of Wilmingtons sidewalk maintenance ordinance. The decision provides relief to both landowners and insurers because it relieves abutting landowners of the burden of having to maintain city sidewalks. It also eliminates strict liability for violations of the ordinance. From henceforth, the City of Wilmington must maintain its own sidewalks.

In Schadt, a "power walker" fell while on the sidewalk in front of a private residence. The plaintiff sued the owners of the abutting property, alleging they had violated the requirements of the City of Wilmingtons sidewalk maintenance ordinance, 1 Wilm. C. 42-42. That section purported to impose sole responsibility for sidewalk maintenance on abutting landowners. A violation of the ordinance was deemed to be a civil nuisance. The Schadt landowner defendants contended the enactment of the sidewalk maintenance ordinance exceeded the authority granted to the City under its Charter. They argued that the Charter imposes the duty to maintain public sidewalks squarely on the City. They also urged that the ordinances use of the term nuisance was not meant to impose strict liability pursuant to the common law doctrine of nuisance per se.

The trial court sided with the plaintiff, ruling that the ordinance was a proper delegation of the Citys duty to maintain sidewalks. It also reasoned that the ordinances reference to the term nuisance resulted in strict liability which precluded any defense argument that the power walker may have been contributorily negligent for her own conduct and her failure to attend to the conditions of the sidewalk. Based on that skewed view, the jury awarded the plaintiff $230,000.

The Delaware Supreme Court had never before considered whether the City ordinance exceeded the City Charter. The high court reversed the trial judge and agreed with the landowner defendants. Analyzing the parameters of civic authority, it held that the ordinance was an impermissible delegation of the sidewalk maintenance duty. Since the Supreme Court reversed the trial court with respect to the interplay of the ordinance and the Charter, the Court did not address the issue of whether a nuisance violation of an ordinance would result in strict liability. Absent resolution of that collateral issue, there remains a danger that other trial judges could impose strict liability where state statutes or local ordinances declare a violation thereof to be a "nuisance." If a violation of a mere maintenance ordinance triggers strict liability which, in turn, precludes arguments of contributory negligence, plaintiffs will freely shift accountability for their own observational and behavioral carelessness to neighboring landowners.

Pennsylvanias larger municipalities fared no better in Walker v. Eleby, decided by the Pennsylvania Supreme Court on February 18, 2004. The Walker pedestrian fell on a sidewalk in front of a residence on Chestnut Street in West Philadelphia, a roadway designated as a state highway. The pedestrian sued both the landowner and the City of Philadelphia, contending that the municipality was liable for the dangerous condition of sidewalks within the rights-of-way of streets owned by the local agency under an exception to the governmental immunity statute, 42 Pa. Cons. Stat. 8542(b)(7). Compulsory arbitration resulted in an award for the plaintiff which the City appealed. The City contended it was only liable for streets it owned, and that it did not and could not own a state highway such as Chestnut Street. The Common Pleas Court agreed, entering a $15,000 judgment against the landowner alone.

On appeal, however, the Pennsylvania Supreme Court concluded that the legislatures mere designation of Chestnut Street as a state highway did not confer onto the Commonwealth the ownership of the street. After reviewing a host of conflicting decisions from the inferior appellate court, the Supreme Court determined that absent express legislation or eminent domain proceedings (which could convey ownership), ownership [of the street] remains with the municipality. Implicitly agreeing that a street includes both the vehicular cartway and any adjacent sidewalk, the Supreme Court reconciled the State Highway Law with the governmental immunity statute. It held that the state highway designation vests responsibility on the Commonwealth only for maintenance and repair, but that such designation left all remaining aspects of ownership on the City. [R]esponsibility for regulation of traffic, parking and use of the streets as well as the obligation to repair and maintain curbing and footways, remove snow and keep streets clean, remains with the city in which the street is located. Therefore, the City of Philadelphia must be deemed to own Chestnut Street where [the] injury occurred. Having concluded that the City, not the Commonwealth, owns the state highway, the Court ruled that the trial court should have allowed the pedes-trian to recover against the City under the sidewalk exception to governmental immunity.

Delawares Schadt decision helps shift the onerous burden for protecting against hazardous sidewalk conditions from individual landowners to the entire community which benefits from the public walkways. Pennsylvanias Walker decision may go even further. While Walker did not absolve adjacent landowners from the liability to which they have long been accustomed, it exposes larger municipalities to a wide range of liabilities over state highways within their boundaries.

William L. Doerler practices in the Wilmington office and can be reached at 302-467-4548 or doerlerw@whiteandwilliams.com. He was among the White and Williams attorneys serving as co-counsel for the Schadt defendants.