Q & A IMPORTANT BULLETIN

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1 RHODE ISLAND INTERLOCAL RISK MANAGEMENT TRUST THE RISK ADVISOR & A IMPORTANT BULLETIN Sidewalks: Myths, The Law, and Solutions JUNE 2008 This issue of The Risk Advisor was prepared primarily by Attorney Melody Alger of Baluch, Gianfrancesco, Mathieu and Szerlag. Ms. Alger and her firm handle many sidewalk trip and fall claims against Trust Members. Maintaining Sidewalks: Whose Job Is It Anyway? There is considerable confusion within municipalities regarding the duty to maintain sidewalks within respective cities and towns. The directives from the courts and the General Assembly in this area are often and also confusing, contradictory and outdated. Nonetheless, failure to maintain municipal streets and virtually all sidewalks can subject a municipality to liability when an injury occurs. In order to implement an appropriate sidewalk maintenance program, a municipality must understand exactly what is required of it under Rhode Island General Laws (RIGL). To do so, one has to disregard the preconceived, incorrect notions surrounding the issue. Are Towns responsible for Town Sidewalks and is the State responsible for State Sidewalks? Under RIGL , municipalities are responsible for maintaining ALL sidewalks adjacent to highways within their boundaries, even those on State highways. (See insert on page 4 for recent Supreme Court cases on this topic.) While the State is responsible for potholes, obstructions and other defects on State highways and bridges, the municipality is responsible for sidewalks, with few exceptions. Can a municipality be liable for injuries sustained by a person injured on a Town or State sidewalk? Under RIGL , a person may recover from a municipality for bodily injuries received as a result of a municipality s breach of its duty to maintain Town or State sidewalks. Can State action result in the State re-assuming sidewalk maintenance duties? Although the duty to maintain state sidewalks has been delegated to cities and towns, the State may retain this duty by exercising control over certain sidewalks. The State may then be subject to liability for (Continued on page 2)

2 & A SIDEWALKS; MYTHS, THE LAW, AND SOLUTIONS defects in state sidewalks under certain circumstances including: Maintenance Contracts: The State will often enter into maintenance contracts with a city or town in which a state highway reconstruction project is being conducted. Though most contracts provide that the State will be responsible for maintenance of the sidewalks only while the project remains unfinished, some are openended. Indicia of Control: If the State has assumed control over a sidewalk area by, e.g. placing signage, putting a proposed reconstruction project out to bid, or reconstructing a sidewalk surface, the town may be able to demonstrate that the State did not effectively delegate its responsibility for the area to the town. Subsequent remedial measures: Repair of a highway defect may be evidence that the State has assumed control of the area; 1 the same repair by a town may not be used as evidence of ownership. 2 State facilities: If a sidewalk is rendered hazardous due to the State's installation of structures such as manhole covers, sewer grates or signage, or if the State has neglected to maintain such facilities, it may be liable in negligence. Will a municipal ordinance that requires property owners to maintain and repair the sidewalks adjacent to their properties relieve the City or Town of liability for injuries on sidewalks? The General Assembly has delegated the duty to maintain sidewalks exclusively to Cities and Towns. Municipalities cannot, in turn, delegate that duty to a third party. The Rhode Island Supreme Court has held that the delegation of this duty, either by contract or ordinance, is ineffective in immunizing the municipality from liability should an injury occur due to sidewalk defects. See Gillikin v. Metro Properties, Inc., 657 A.2d 1060 (R.I. 1995); Eaton v. Follett, 48 R.I. 189, 136 A. 437 (1927). Does "Maintenance" of sidewalks only refer to the occasional repairs of broken or uneven slabs? Rhode Island General Laws require a municipality to keep its sidewalks in good repair so that the same may be "safe and convenient" for travel. Municipalities have been subjected to liability under this provision for "dangerous" sidewalk defects ranging from tree wells to trash, water caps to signposts, silt and sand to cracks in slab seams. Hazards are not limited to obvious, gaping potholes or grossly uneven sidewalk slabs, but can include even minor imperfections which can cause or contribute to a person's fall. Is it true that a City or Town cannot be liable for an injury resulting from a sidewalk defect unless it had prior notice of the defect? Technically, this is correct. The law states that a municipality may be liable for its failure to keep sidewalks in good repair provided that it had notice of the defect "or might have had notice thereof by the exercise of proper care and diligence on its part". (RIGL ). In other words, if a judge or jury finds that the defect was significant enough so that it should have been discovered by the Town before an injury occurred, the Town will be deemed to have had "constructive notice" of the defect. Recently, in a case handled by The Trust, a jury awarded an elderly woman $200,000 after she 1 Rule 407, Rhode Island Rules of Evidence. 2 Rhode Island general Laws (mending of highway shall not constitute evidence of acceptance of the way or street by the City or Town.) 2

3 fell on a raised water cap about which the City received no actual complaint or other notice. The court rejected the city s claim that it was unaware of degraded or cracked concrete around the cap, as the City had failed to perform and record regular sidewalk inspections which would have provided notice of such condition. What constitutes a defect? Claims have been made against Trust members for injuries allegedly resulting from numerous conditions including: Accumulation of sand on roadways and sidewalks Snow and Ice Trash cans and debris impeding passage on sidewalks Raised tree roots, uplifting sidewalk tablets Placement of drainage grates that are not bicycle -safe Tree wells with improper fill, or with rusty or broken decorative borders Boundary markers; including rocks, posts and decorative bricks or stones Temporary signs Rough surfaces Sewer grates and manhole covers Some Solutions There is little wonder that there is confusion and frustration within public works department's through-out the State. Municipalities have an almost insurmountable task - regularly inspecting, maintaining, repairing and clearing those sidewalks within its borders - even those which were constructed by the State. There are, however, ways a Town can comply with statutory requirements while sharing some of its responsibilities. For example, although Towns are generally responsible for the condition of all sidewalks lying within its bounds, the State of Rhode Island is specifically required to sweep the sidewalks adjacent to State highways on an annual basis. Keep records of the State's compliance in your Town. If the State neglects this responsibility, alert the Department of Transportation (DOT). Furthermore, the State will often execute maintenance agreements with Towns in which the State is repaving or reconstructing adjacent highways. While these maintenance agreements typically provide that the municipality is responsible for ongoing maintenance upon completion of the project, some municipalities, notably the City of Newport (see Pullen v. State, insert on page 4), require the State to provide maintenance indefinitely. If utility companies or water or sewer authorities maintain facilities on Town sidewalks, make sure they are in good repair and do not impose a hazard to pedestrians. Facilities include water pipes, sewer grates, and poles and signage. If the utility company is an entity independent of the municipality, alert the utility company or authority, keeping records of your communications. If the utility authority is run by the municipality, repair the defect immediately. When a City performs a function that a private individual or company might perform, such as furnishing water, it acts in a "proprietary" capacity and loses many of the immunities and protections which it normally enjoys. Therefore, while tort claims against a City are usually limited to a maximum recovery of $100,000 and will not include prejudgment interest, those involving "proprietary" functions may subject the municipality to unlimited liability to which prejudgment interest will be added at the statutory rate of 12% per year from the date of injury. A municipality cannot be expected to discover and repair every defect within its borders, or prevent every sidewalk accident. Injuries, and the inevitable lawsuits that follow, can occur even in Towns that pay scrupulous attention to their maintenance duties. However, those Towns with inspection programs, maintenance records and regular repairs will be viewed by a jury far more favorably than those without. Watch Your Step! Trends in Jury Verdicts A number of verdicts within the last several years suggest an alarming trend in sidewalk litigation. Unlike the trend in other areas of personal injury cases, juries 3

4 appear to be sympathetic to typical sidwalk claimants and more willing to award significant damages to those injured. Juries almost seem to delight in awarding large damages, perhaps as retribution against the municipality for all the potholes, sidewalk defects, and other similar inconveniences individual jurors encounter as they go about their daily affairs. Trends in Jury Verdicts Whether an area is in significant disrepair so as to render it unsafe is generally a question of fact. Allen v. Pepin, 74 R.I. 144 (Whether the condition of the sidewalk was a menace to pedestrians were clearly questions of fact for determination by a jury). Juries feel that a more significant defect should have been noticed by a town officials before an injury occurred. uinn v. Stedman, 50 R.I. 153 (defect causing injury must be of such a character, in view of its location and the use made of the walk, that it has attracted the attention of town officers or should cause them if, but if reasonable men may differ about whether an accident ought to have been anticipated, the question of the town's negligence is a proper question for submission to a jury. Juries tend not to assess liability for minor variations on a walking surface. Variations in walking surfaces of an inch or less are insignificant. Juries have become cynical. The average juror has become increasingly unwilling to award damages for injuries due to slips and falls. Though juries tend to be more sympathetic to Plaintiff's with serious injuries such as fractures, juries strongly feel that a pedestrian is responsible for using due care for his or her own safety and to observe all conditions on walking surfaces. An inspection program may counterbalance the existence of a defect. A town that conducts regular inspections fares better before a jury than a town that relies on citizen complaints to alert it to defective sidewalk conditions. Juries presume inattention. Even in cases involving serious injuries, juries will not award damages unless they are reasonably certain that the condition, and not the injured party's inattention, was the primary cause of the accident. The Supreme Court Inspects Sidewalks The Rhode Island Supreme Court has decided three important cases involving sidewalk issues. The cases, read together, reaffirm a municipality's obligations and liabilities with respect to sidewalks adjacent to State highways. However, each case provides guidance on the type of circumstances which can lead to the State sharing and in some cases, assuming exclusively, responsibility for sidewalks adjacent to State sidewalks. The Trust was involved in all three cases. In Pullen v. State and Tedesco v. Connor Trust-assigned counsel handled the defense of the City. In Lincoln v. State of Rhode Island, The Trust filed an amicus curiae brief urging the Supreme Court to adopt a revised and different interpretation of the law more favorable to municipal interests. Pullen v. State, 707 A.2d 686, 688 (R.I. 1998) Plaintiff sued the City of Newport for injuries she sustained after falling over a heaved-up sidewalk slab adjacent to America's Cup Avenue, a State highway. The State had constructed the highway on land dedicated by a City agency. In exchange for the land grant, the State executed a Maintenance Agreement wherein it agreed to maintain the highway and appurtenant sidewalks in perpetuity. On that basis, the City argued that it had no duty to maintain the sidewalk. The court agreed and concluded that the Maintenance Agreement extinguished any duty on the part of the City to maintain those sidewalks adjacent to America's Cup Avenue. Just as the State could delegate responsibility for sidewalks to municipalities, it could also resume that duty via contract with the City. Lincoln v. State of R.I., 712, A.2d 357 (R.I. 1998). The Town of Lincoln sued the State for reimbursement of expenses for the Town's repair of a sidewalk adjacent to a State highway. The Court dismissed the Town's claim, holding that municipalities have a statutory duty to maintain sidewalks within its borders. However, the Court did recognize circumstances in which the State may have a duty to maintain such sidewalks. 4

5 For example, the State may execute a Construction and Maintenance Agreement with a Town, as in Pullen. Further, even if the State owes no duty to reimburse a municipality for maintenance costs of State-owned sidewalks, the State may still be liable to a party injured on a defective sidewalk if the State knew of a dangerous situation but, nonetheless, chose not to remedy it. New New Case Case (completes (completes the the Pullen, Pullen, Lincoln Lincoln series) series) Tedesco Tedesco v. Connors, v. Connors, A.2d, A.2d, 920 (R.I ). (R.I. RIDOT's 2003). policy RIDOT's of replacing policy of all replacing parallel-bar all parallel-bar was sewer sufficient grates to was relieve sufficient the municipality to relieveof its the sidewalk municipality maintenance of its sidewalk responsibilities. maintenance The sewer grates court responsibilities. concluded that The the court State concluded may assume that control the over State sidewalks may assume in any control number over of sidewalks ways, thereby in relieving any number towns of the ways, duty thereby of maintenance relieving towns of state sidewalks, of the duty and/or of maintenance liability for neglect of state thereof. sidewalks, and/or liability for neglect thereof. Sidewalk Laws - A Dated Patchwork Below are some relevant portions of the text of the statues governing maintenance of highways and sidewalks Duty of town to maintain highways (a) All highways, causeways, and bridges shall be kept in repair and amended, from time to time, so that the highways, causeways, and bridges may be safe and convenient for travelers with their teams, carts, and carriages at all seasons of the year, at the proper charge and expense of the town provided that the state shall be responsible for the annual cleaning of all sidewalks on all state highways, causeways, and bridges Regulations of sidewalks and curbs The director of transportation shall have the power and authority to alter, to maintain, to keep in good condition, to remove ice and snow there from, to remove posts, steps and any other obstructions therein, to regulate the placement, structure, and alteration of curbs constructed adjacent to state roads, to regulate the height, size, and shape of awnings, signs, and other structures which project over all curbs and all sidewalks now constructed, in the process of construction or to be constructed on state roads; except, on portion or portions of state roads in cities or town where the territory contiguous thereto is closely built up Liability of cities and towns for injuries from defective roads (a) The cities and towns shall also be liable to all persons who may in any way suffer injury to their persons or property by reason of any neglect, to be recovered in a civil action Recovery against town for damages from neglect to maintain highway or bridge If any person shall receive or suffer bodily injury or damage to that person's property by reason of defect, want of repair, or insufficient railing, in or upon a public highway, causeway, or bridge, in any town which is by law obliged to repair and keep the same in a condition safe and convenient for travelers with their vehicles, which injury or damage might have been prevented by reasonable care and diligence on the part of the town, the person may recover from the town, the amount of damages, sustained thereby, if the town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part Snow and ice removal The several towns shall provide by ordinance in a manner and under such penalties as they may deem expedient, for removing snow from the public highways so as to render the public highways passable with teams, sleds, and sleighs; but nothing contained in this chapter shall be so construed as to render any town or city liable for any injury to person or property caused by snow or ice obstructing any or any part of the highways therein, unless notice in writing of the existence of the particular obstruction shall have been given to the surveyor of highways within whose district the obstruction exists, at least twenty-four (24) before the injury was caused, (Continued on page 6) 5

6 and the town or surveyor shall not thereupon within twenty-four (24) hours of notification have commenced the removal of the obstruction, or caused on a defective sidewalk if he State knew of a dangerous situation but, nonetheless, chose not to remedy it. Tips for Loss Prevention Develop a Sidewalk Maintenance Program A Sidewalk Inspection and Repair Program provides a systematic approach to sidewalk maintenance, allowing sensible and efficient use of municipal resources in the upkeep of sidewalks. By identifying areas needing improvement, prioritizing, and tracking repairs, your department will be better able to provide for pedestrian safety and reduce liability for trip and fall incidents. regarding the condition of your sidewalks. If repairs are made, note the reason for the repair and the date it was made. Advise DOT of all repairs to State sidewalks. Communicate with the State The State is required to clean sidewalks adjacent to its highways annually. Keep track of its cleaning schedule in your town. Ask to be advised prior to cleaning and that it be done at the end of winter in order that the sand and salt accumulated from the winter months be swept off the sidewalks. Be Aware of Maintenance Agreements The State routinely executes a Construction and Maintenance Agreement with any highway/sidewalk reconstruction project. It typically provides that the Town will provide all future sidewalk maintenance at project's end. Enlist your solicitor to negotiate a better deal. There are Agreements in which the State accepts the responsibility of future sidewalk maintenance, especially where the Town has donated land or the area is of particular importance to the State. Keep Sidewalks in Good Repair Contact Brian T. Ahern, Loss Prevention Manager, for assistance with sample sidewalk maintenance and inspection programs. You can reach Brian by calling (401) , ext. 516 or by at bahern@ritrust.com Adopt a regular maintenance schedule and stick with it. Many municipalities conduct repairs, replacement or debris removal only upon receiving a complaint. However, often the complaint is too late - the injury has already occurred! RHODE ISLAND INTERLOCAL Document Everything If a complaint comes in, keep a record of it and its resolution. If the State is involved in a sidewalk or highway project, keep note of the date, time and scope of the project. Keep records of inspections, including dates, persons involved and notes 501 WAMPANOAG TRAIL I SUITE 301 EAST PROVIDENCE I RI I O2915 PH: (401) RI: (800) FAX: (401) CLAIMS FAX: (401)