Iowa cities may shift tort liability for unsafe sidewalks to abutting property owners

by Gary Taylor

Madden v. City of Iowa City and State of Iowa
(Iowa Supreme Court, June 13, 2014)

Beth Madden was riding her bike on a sidewalk abutting the University of Iowa when she lost control, crashed, and sustained injuries.  She sued the city claiming that the city owned or had control over the sidewalk, a defect in the sidewalk caused the accident, and the city was negligent in failing to prevent or remedy the defect or failed to exercise reasonable care in maintaining the sidewalk.  The city brought the university (the state of Iowa) in as a third party, citing a city ordinance that requires abutting property owners to maintain sidewalks in safe condition.  The university disputed its liability, which gave rise to this case.

In Iowa, the courts have long followed the common law rule that an abutting property owner is not liable in tort for injuries arising from defects in adjacent sidewalks, and that statutes requiring abutting landowners to engage in maintenance such as snow and ice removal do not give rise to such liability.  Iowa Code 364.12(2) provides:

A city shall keep all …sidewalks…in repair, and free from nuisance, with the following exceptions
b.  The abutting property owner is responsible for the removal of  the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice….
c.  The abutting property owner may be required by ordinance to maintain all property outside the lot and property lines and inside the curb lines upon the public streets….
The Iowa Supreme Court found that Iowa Code 364.12(2)(c) does not give rise to a private cause of action against an abutting property owner for injuries resulting from a sidewalk defect.  The court pointed out that the statute expressly authorizes a damages action in subsection (b) for failure to remove snow and ice, but that such language is conspicuously absent in subsection (c).
Preemption. This, however, did not end the legal dispute.  The city’s ordinance provides that “the abutting property owner shall maintain the sidewalk in a safe condition, in a state of good repair, and free from defects,” and further that the abutting property owner “may be liable for damages caused by failure to maintain the sidewalk.”  The university asserted that the city did not have the authority under state law to impose liability on an abutting property owner, or enact an ordinance that would result in a waiver of the state’s sovereign immunity in tort claims such as this one.  The city argued that under home rule it has the authority to impose liability on abutting property owners, regardless of the state statute.
The Supreme Court viewed the issue as one of preemption; specifically, whether state law “impliedly preempts” local regulation on the subject.  In order to give rise to implied preemption, the local ordinance must be “irreconcilable” with state law.  Courts will work to “interpret the state law in such a manner as to render it harmonious with the ordinance.”  The court noted that section (c) is silent on the issue of liability, but that “legislative silence [should not be] interpreted as a prohibition of local action in light of our obligation to harmonize and reconcile a statute with an ordinance whenever possible….We therefore conclude that when an ordinance or statute validly imposes a maintenance obligation and also imposes liability on the abutting landowner, the city is entitled to indemnification from the abutting landowner for any damages arising out of its failure to maintain the sidewalk.”  An ordinance that creates such as scheme is not preempted by Iowa Code 364.12.
Illegal tax. For its second line of defense, the university asserted that the attempt to transfer liability to the state amounted to levying a tax not authorized by statute.  The court disagreed.  A “tax” is a general revenue measure without benefits conferred.  In this case, no funds go into the city’s coffers for general purposes, and taxpayers are not being charged for services that have no benefit to them.  the ordinance is a police powers regulation that cannot be “shoehorned into our taxation doctrine.”
Sovereign immunity.  Finally, the university argued that state immunity from liability under the Iowa Tort Claims Act (ITCA) was not waived in this case, either by operation of statute or under common law.  The court also rejected this argument, noting that the ITCA has been interpreted as establishing a “general waiver of sovereign immunity” subject to the exceptions delineated in the act, none of which apply in this case.  The purpose of the waiver of immunity is to allow the state to be sued “under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death.”
For these reasons, the Iowa Supreme Court ruled that the university should remain a party to the lawsuit.
Justices Mansfield and Waterman dissented.  They read Iowa City’s ordinance as an effort to alter the statutory division of responsibility between city and property owner. “Simply stated, the city wants the property owner to do more to maintain city-owned sidewalks, so that the city may do less.”  They believe that the city ordinance clearly conflicts with Iowa Code 364.12, which they read as containing “an express legislative determination that the city should be responsible for sidewalk maintenance subject only to a particularized right to shift costs of repair to the adjoining property owner in certain circumstances.”

City violates ADA when sidewalks are inaccessible to individuals with disabilities

by Gary Taylor

Frame, et al., v. City of Arlington
(Federal Fifth Circuit Court of Appeals, September 15, 2011)

The plaintiffs, who depend on motorized wheelchairs for mobility, sued the City of Arlington, Texas, alleging that it violated the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act by failing to make certain public sidewalks accessible to them. They alleged that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks were built or altered by the City after the effective date of the ADA in1992.  The lawsuit was initially brought on July 22, 2005, and amended on August 9, 2007.

The ADA provides that no disabled individual “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.” For nearly two decades, the ADA’s implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities.  The United States District Court for the Northern District of Texas originally dismissed the plaintiffs’ complaint, holding that their cause of action accrued from the date the city built or altered the sidewalks in question, and therefore the suit fell outside of the statute of limitations period.

The Fifth Circuit Court of Appeals reheard the case three times.   The entire panel of the Fifth Circuit heard this the latest case. The majority began by acknowledging that both the ADA and the Rehabilitation Act allow for a private right of action for individuals to bring suit.  The court saw two possible ways to frame the issue: (1) whether building and altering sidewalks are services, programs, or activities of a public entity, and thus whether the resulting sidewalks are “benefits” of those services, programs, or activities; or (2) whether a city sidewalk itself is a service, program, or activity of a public entity. The court then concluded that either way, when a city decides to build or alter a sidewalk and makes that sidewalk inaccessible to individuals with disabilities without adequate justification, the city unnecessarily denies disabled individuals the benefits of its services in violation of Title II. To reach this conclusion the court looked to the ADA’s implementing regulations and Congress’s intent in passing the ADA.

Further, the court found that a private cause of action accrues from the moment the plaintiffs knew, or should have known, of their injury, not the moment the non-compliant sidewalk was built or altered.

Seven judges joined an opinion concurring in part and dissenting in part, challenging only the majority’s conclusion that a sidewalk is a service under the ADA. In order to confine private causes of action to the proper subject matter of the ADA, the dissent asserted that “inanimate and static” sidewalks must be considered public facilities rather than public services. Thus the dissent would read the ADA as granting disabled individuals a private cause of action only if the inaccessible sidewalks denied the individuals access to a public service.

Special assessment for construction of regional trail held invalid

By Melanie Thwing

Hildeband v. Town of Menasha

(May 11, 2011, Wisconsin Court of Appeals)

David and Susan Hildebrand own 6.216 undeveloped acres in the Town of Menasha, WI. The property is zoned commercial but the owners had no current plan for development.  The north side of this property does not have a sidewalk but does abut four-lane arterial street.  In 2007 the town assessed the owners $33,205 for the installation of  the 958-foot section of a 10-foot wide asphalt regional recreation trail.  The section would have connected to the regional trails in several municipalities.

About the same time the Town also applied for grant funding through the Department of Natural Resources.  Under Wis. Admin. Code. § NR 50.06 these projects are given priority based on general public use. The Town specified in the application that the trail would “be used extensively by people outside [its] governmental jurisdiction.”  The project was also continuously referred to as a “recreational trail” not a sidewalk. As the community development director for the Town pointed out unlike sidewalks, the town is not required to maintain the trails if they choose not to.

The Hildebrands challenged the assessment in circuit court, arguing that Wis. Stat. § 66.0703 only permits assessments for “special benefits [conferred] upon the property.”  Witnesses for the Town testified that a special benefit occurred because the trail now provided direct and safe access to the property for nonmotorists and enhanced the property value. The circuit court, however, sided with the Hildebrands

The town appealed to the Wisconsin Court of Appeals.  According to the Court of Appeals a general benefit is one that benefits the entire community whereas a special benefit is an improvement that primarily benefits a particular locality and gives special benefits to those properties. By looking at the purpose of the trail the circuit court found that the primary benefit is general in nature.  The court found the trail was more like a park than a sidewalk because it provides recreational benefits to the region, and the landowners are not required to clear snow from the trail (unlike a sidewalk).  The court also noted that the Hildebrands’ property also had another trail running along the south side, and that therefore any special benefit to the property that comes with access to the trail had already been satisfied.  Because of this, there is no appreciable amount of special benefit given to the Hildebrand property by extending the trail.

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