Ordinance Amending BMC Section to Establish that a Property Owner Can Be Liable for Failing to Maintain the Adjacent Sidewalk

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1 Office of the City Manager ACTION CALENDAR June 7, 2011 To: From: Honorable Mayor and Members of the City Council Phil Kamlarz, City Manager Submitted by: Zach Cowan, City Attorney Subject: Ordinance Amending BMC Section to Establish that a Property Owner Can Be Liable for Failing to Maintain the Adjacent Sidewalk RECOMMENDATION Adopt the first reading of an Ordinance amending Berkeley Municipal Code section (attached) to establish that if a property owner fails to keep the sidewalk area in a safe condition for pedestrians (as is already required by both state and local law), then the owner is potentially liable for pedestrian accidents. FISCAL IMPACTS OF RECOMMENDATION The City will save an average of approximately $60,000 per year in settlements of claims and lawsuits arising out of pedestrian accidents on sidewalks. CURRENT SITUATION AND ITS EFFECTS Under state law (California Streets and Highways Code section 5610), property owners have a legal responsibility to keep the sidewalk area in front of their property in good repair and in a safe condition for pedestrians. Since 1918, the City of Berkeley has had a similar local ordinance requiring property owners to keep the sidewalk area in front of their property in good repair BMC (Under both state and local law, the sidewalk includes the sidewalk and the adjacent planting strip and curb.) Despite this clear, long-standing requirement for property owners to maintain the sidewalk area in good repair, under current case law, a city must make it clear in its local ordinance that a property owner has potential liability to an injured pedestrian who trips and falls on a deteriorated sidewalk. Without a clear local ordinance stating the property owner is liable for an accident if the owner fails to maintain the sidewalk area in good repair, an injured pedestrian generally cannot sue the owner in sidewalk accident cases. The two narrow exceptions to this case law protecting property owners are when the owner has modified the sidewalk for the owner s benefit or the condition of the owner s property itself damages the sidewalk. These exceptions rarely arise. The City s current ordinance does not clearly state that an injured pedestrian can sue a property owner for failing to keep the sidewalk area in good repair. The proposed 2180 Milvia Street, Berkeley, CA Tel: (510) TDD: (510) Fax: (510) Website:

2 Ordinance Amending BMC Section ACTION CALENDAR June 7, 2011 ordinance amendment will change that by clearly stating that if a property owner fails to maintain the sidewalk area adjacent to the owner s property in good repair, and a person is injured as a result of that failure, then the owner is liable for the injury. The amended ordinance will not eliminate potential City liability for sidewalk accidents. Rather, the amendment will make the adjacent property owner potentially jointly liable (along with the City) in trip and fall cases because, even with such an ordinance, the City remains potentially liable as well. This potential joint liability of the property owner with the City will typically trigger private insurance coverage from the property owner s homeowner s insurance. The availability of private homeowner s insurance to pay for sidewalk claims and lawsuits will likely result in the City paying approximately 50% less each year in trip and fall settlements amounting to an annual savings of approximately $60,000. BACKGROUND The City settles an average of 11 claims and/or lawsuits each year arising out of pedestrian accidents on sidewalks. Each year, the average total settlements for such matters is approximately $120,000, but the current trend is that this amount is increasing. Typically, the City is the only defendant in such claims and lawsuits. However, this need not remain so. In Gonzales v. City of San Jose, 125 Cal.App.4 th 1127 (2004), the court held that if a city makes it clear in its local ordinance that property owners must not only keep the sidewalk area adjacent to their property in a safe condition, but that this responsibility also extends to pedestrians using the sidewalk, then the owner is potentially jointly liable (along with the city) in sidewalk trip and fall cases. Joint liability means that both the property owner and the City are potentially liable, but the proportionate share of City/property owner responsibility will be decided on a case-bycase basis, depending on the facts of each particular case. Most property owners have homeowner s insurance that would cover such a claim, and mortgage lenders require such insurance as a condition of a mortgage loan. Commercial property owners typically carry similar insurance. Accordingly, under the amended ordinance, sidewalk trip and fall claims and lawsuits would now typically involve the property owner s insurance company in addition to the City. We assume that on average, property owner insurance companies will pay 50% of a meritorious sidewalk trip and fall claim, but the amount of such payments will vary with the facts of each case. RATIONALE FOR RECOMMENDATION The proposed ordinance establishes that a property owner has potential liability for an accident caused by the owner s breach of the longstanding existing duty to maintain the sidewalk in good repair. This amendment may result in more property owners reporting sidewalk defects to the City, which in turn, would increase the number of sidewalk defects that are patched with asphalt ramps and replaced with fresh concrete before an accident occurs. This would be an excellent result because it would likely reduce the

3 Ordinance Amending BMC Section ACTION CALENDAR June 7, 2011 number of pedestrian trip and fall accidents. This, in turn, would reduce the number of claims and lawsuits against the City arising out of such accidents. Even if the number of such claims and lawsuits did not drop significantly, based on historic averages (which are rising), the proposed ordinance would still save the City approximately $60,000 per year in claim and lawsuit settlements for such cases. Most other cities in the Bay Area have already enacted such amendments to their sidewalk ordinances. The Bay Area Joint Powers Insurance Authority, of which the City is a member, has also asked all its members to do so as a best practices liability reduction measure for cities. ALTERNATIVE ACTIONS CONSIDERED Staff considered that the City continue to allow itself to be the sole defendant in most sidewalk trip and fall claims and lawsuits without any involvement of the property owner (despite the property owner s longstanding responsibility to maintain the sidewalk), but staff believes the current situation is both unfair to the City and counter-productive to increasing pedestrian safety. CONTACT PERSON Zach Cowan, City Attorney Matthew J. Orebic, Deputy City Attorney Attachments: 1: Ordinance (strikeout version) 2: Ordinance (clean version)

4 ORDINANCE NO. -N.S. AMENDING BERKELEY MUNICIPAL CODE SECTION TO ESTABLISH THAT A PROPERY OWNER CAN BE LIABLE FOR FAILING TO MAINTAIN THE ADJACENT SIDEWALKS BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. That Berkeley Municipal Code Section is amended to read as follows: Sidewalk repair requirements Property owner s duty to the public. It is unlawful for any person, firm or corporation owning or having in charge or control, any building, lot or premises owner of any real property in the City, other than the City itself, fronting on any portion of an improved public street, alley, or way, where a sidewalk is laid, either as owner, lessee, tenant or otherwise, to allow any portion of such the sidewalk in front of such building, lot or premises adjacent to the property to be out of repair., and such Said owner person, firm or corporation must at all times keep such sidewalk in such condition that it will not endanger persons or property passing thereon and will not interfere with public convenience in the use thereof. Said owner owes a duty to members of the public to keep said sidewalk in a safe condition. If said owner fails to maintain said sidewalk in a safe condition, and a person sustains injury or damage as a result of said failure, then the owner shall be liable to such person for the resulting injury or damage. Sidewalk as used in this section has the same meaning as stated in Berkeley Municipal Code section Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

5 ORDINANCE NO. -N.S. AMENDING BERKELEY MUNICIPAL CODE SECTION TO ESTABLISH THAT A PROPERY OWNER CAN BE LIABLE FOR FAILING TO MAINTAIN THE ADJACENT SIDEWALKS BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. That Berkeley Municipal Code Section is amended to read as follows: Sidewalk repair requirements Property owner s duty to the public. It is unlawful for any owner of any real property in the City, other than the City itself, fronting on any portion of a public street, alley, or way, to allow any portion of the sidewalk adjacent to the property to be out of repair. Said owner must at all times keep such sidewalk in such condition that it will not endanger persons or property passing thereon and will not interfere with public convenience in the use thereof. Said owner owes a duty to members of the public to keep said sidewalk in a safe condition. If said owner fails to maintain said sidewalk in a safe condition, and a person sustains injury or damage as a result of said failure, then the owner shall be liable to such person for the resulting injury or damage. Sidewalk as used in this section has the same meaning as stated in Berkeley Municipal Code section Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.

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