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Sidewalk debate on the shelf

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Posted: Friday, January 11, 2008 10:00 pm

Nearly two years ago, Lodi's City Council pondered an ordinance that would have placed most liability for trip-and-fall lawsuits from damaged sidewalks on homeowners, rather than taxpayers.

Amid fierce controversy, council members voted to let the matter die, in part because Lodi is already one of many California cities that require homeowners to repair sidewalks, unless a city-owned tree caused the damage.

Despite a recent settlement in which the city paid $30,000 to a woman who fell on a damaged sidewalk, council members don't seem interested in reviving the debate. The homeowner's insurance in that case paid $100,000.

"Personally, I've been beaten up over it enough," Vice Mayor Larry Hansen said of the issue that drew plenty of public interest in February 2006.

At that time, Hansen had been inclined to support the issue, as a way of protecting city coffers that are funded by taxpayers. But council members received countless e-mails and telephone messages, and other Lodi residents wrote letters of outrage to the newspaper.

Why, they asked, should homeowners have to pay to repair public sidewalks?

For that matter, Mayor JoAnne Mounce was strongly opposed to the entire idea, and the recent settlement has certainly not changed her mind. Until all sidewalks damaged by city-owned trees are repaired, she doesn't think it's fair to hold homeowners to tougher standards.

"My grandmother used to say, 'Don't complain about stinky garbage until you've cleaned up your own,'" Mounce said.

Stockton has an ordinance regarding the issue that mentions property owners and liability in the title, though the wording itself doesn't spell out who is liable. But the law, which has been on Stockton books since 1968, does make it clear that owners are responsible for fixing the sidewalk.

The city of Sacramento, however, has an ordinance that specifically says the property owner is liable for personal injury or property damage. If the city does have a share of the liability, such as a city tree being involved, the property owner can't sue the city.

Galt residents are required to fix sidewalks in front of their homes, and it's never been much of an issue, said Public Works Director Gregg Halladay. When residents do have to repair sidewalks, the city tries to help, sometimes by waiving some permit fees, he said.

The city of Lodi has paid $63,961.27 to settle five trip-and-fall claims since 2005. In most of these cases, the damage to the sidewalk was caused by a city-owned tree and therefore the city is liable. In some cases, the damage was not caused by a tree.

Dec. 31, 2007: The city paid $30,000 to settle with Margaret Stewart, who fell on a sidewalk damaged by a tree owned by a homeowner.

Oct. 12, 2007: The city paid $30,000 to settle a claim from Kim Lee, who fell on a sidewalk damaged by a city tree.

July 31, 2007: The city paid $274 to settle with Joyce Rudow.

Sept. 29, 2006: The city paid $3,000 to settle a claim with Toni Fitzhugh.

July, 21 2006: The city paid $687.27 to settle a claim by Betty Smith, who fell on a sidewalk damaged by a city tree.

Source: City of Lodi

"Once (homeowners) understand, we try to work with them and make it win-win, because they don't want the liability either," Halladay said.

In Lodi's recent case, a woman tripped on a sidewalk in north Lodi last June. She broke several bones and spent weeks in a hospital. She said the settlement covered the cost of her medical bills but that she still has nerve damage.

If the city had a more clearly outlined ordinance on liability, Lodi may have been able to settle for less than $30,000, City Attorney Stephen Schwabauer said.

He said he's perplexed by the number of citizens who expressed outrage over the fact that homeowners must repair sidewalks, especially since it's a state law.

"People keep saying the city should pay. Well, who is the city? It's you and me, the taxpayers," Schwabauer said.

In the recent settlement, the homeowner was frustrated that his insurance rates will now go up, especially since he didn't plant the tree in the first place.

But that's something prospective home buyers must consider when purchasing a house, Schwabauer said. In a similar vein, if a new homeowner finds structural damage after signing off on all the papers, the previous homeowner is no longer responsible.

"It's no different than if you buy a piece of property with any hazard on it. If you buy a piece of property with environmental contamination on it, the liability stays with you," Schwabauer said.

If the new owner has no idea about existing contamination, that can sometimes get them off the hook in lawsuits. But if a tree is growing in plain sight near a sidewalk, the risk is quite clear, Schwabauer said.

It goes back to more than 100 years of tort law, Schwabauer said: If you cause something to happen, you're liable.

That's why Hansen originally supported the idea of clarifying liability in an ordinance. He found, though, that it was too complicated to explain to citizens, especially since homes go through various owners.

Hansen's home is in a newly developed area and when he bought the lot, part of the cost included infrastructure, such as installing and maintaining sidewalks.

"Where the confusion comes from is the guy who buys my house after me," Hansen said.

Infrastructure costs are ultimately passed on to the next owner in the total purchase price, but after lots start changing hands, such fees are just lumped into the overall price.

The proposed liability ordinance is a dead issue unless the council actually asks to bring it back, Schwabauer said. That doesn't seem likely, since the council already voted it down once.

"Unless we start getting a lot of issues like the pay out amount we just had, I'm not interested in resurrecting it," Hansen said.

Contact reporter Layla Bohm at layla@lodinews.com.

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3 comments:

  • posted at 3:08 am on Tue, Jan 15, 2008.

    Posts:

    How can the city make us pay for sidewalk problems if our insurance tells us we don't own those sidewalks? Who is right? Do we have to claim the sidewalks or not?

     
  • posted at 5:15 am on Mon, Jan 14, 2008.

    Posts:

    When I had a similar situation 2 years ago, my insurance (Allstate) told me that I could not insure the sidewalk because I do not own it. Sidewalks are not part of your property, they belong to LODI.

     
  • posted at 11:38 am on Sat, Jan 12, 2008.

    Posts:

    The problem, as I understand it, occurs when a City tree damages the sidewalk but the City refuses to remove the tree or allow the homeowner to remove the tree.

     

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