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.”

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