R H O D E
I S L A N D
I N T E R LO C A L
THE RISK ADVISOR
R I S K
M A N A G E M E N T
T R U S T
Q&A
I M P O R TA N T B U L L E T I N
JUNE 2008
Sidewalks: Myths, The Law,
and Solutions
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often and also confusing, contradictory and outdated.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.
Q
Are Towns responsible for
Town Sidewalks and is the State
responsible for State Sidewalks?
Under RIGL §24-15-5, municipali ties 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.
Q
Can a municipality be liable for
injuries sustained by a person
injured on a Town or State
sidewalk?
Under RIGL§45-16-8, 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.
Q
Can State action result in the
State re-a
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)
Q&A
S I D E W A L K S ; M Y T H S , T H E L A W, A N D S O L U T I O N S
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.
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).
Q
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.
Q
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?
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?
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§ 45-15-8). 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.
The General Assembly has delegated the duty
to maintain sidewalks exclusively to Cities and
Recently, in a case handled by The Trust, a jury
awarded an elderly woman $200,000 after she
Q
1Rule 407, Rhode Island Rules of Evidence.
2 Rhode Island general Laws §45-15-11 (mending of highway shall not constitute evidence of acceptance of the way or street by the City or
Town.)
2
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.
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.
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
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
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. Quinn 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 exis tence 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
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
NewCase
Case
(co(cmopmleptleestetshethPeuPlluelnle, nL,inLcin
oclnolsnersieersi)es)
v.onCnoonrn
7.12dA
22
d0
, (9R2.I0. 2(0
R0
.I.3).
TeTdeedsceosco
v. C
s,or8s7, 18A
, .9
2003).policy
RIDOT's
policy of all
replacing
all paralRIDOT's
of replacing
parallel-bar
sewer
lel-bar
sewer
grates
was
sufficient
to
relieve
grates was sufficient to relieve the municipality of
municipality
of its sidewalk
maintenance
itsthe
sidewalk
maintenance
responsibilities.
The
responsibilities.
The
court
concluded
that
the
court concluded that the State may assume control
State
may assume
over
in
over
sidewalks
in anycontrol
number
of sidewalks
ways, thereby
any
number
of
ways,
thereby
relieving
towns
relieving towns the duty of maintenance of state
of the duty
of maintenance
of state thereof.
sidewalks,
sidewalks,
and/or
liability for neglect
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.
§24-5
5-1
1. 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.
§24-8
8-9
9. 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.
§24-5
5-1
13. 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.
§45-1
15-8
8. 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.
§24-5
5-1
14. 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
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.
Contact Brian T. Ahern, Loss Prevention Manager,
for assistance with sample sidewalk maintenance
and inspection programs. You can reach Brian by
calling (401) 438-6511, ext. 516 or by e-mail at
[email protected]
Keep Sidewalks in Good Repair
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!
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
RHODE
ISLAND
INTERLOCAL
5 0 1 W A M PA N O A G T R A I L I S U I T E 3 0 1
EAST PROVIDENCE I RI I O2915
PH: (401) 438-6511
RI: (800) 511-5975
FA X : ( 4 0 1 ) 4 3 8 - 6 9 9 0
C L A I M S FA X : ( 4 0 1 ) 4 3 4 - 6 0 9 4
w w w. r i t r u s t . c o m
6