AGENCY LIABILITY DOESN’T STOP AT
THE CURB
published originally in Spring 2001 Salt and Highway Deicing newsletter
Winter maintenance liability can cover several different areas an
agency may be responsible for not only limited to the roadways. Sidewalks also play a key role in the safety of
pedestrians, and the maintenance of mobility and safety for those who choose to travel by
foot can protect an agency. Some agencies
have responsibility to maintain sidewalks; most delegate that responsibility to property
owners. Enforcement of any sidewalk laws or
policies must be addressed in an agency’s winter maintenance plan.
The Salt Institute recently conducted an informal survey of highway
agencies regarding their practices of sidewalk snow-clearing. We found that 83 percent of highway agencies have
some sort of written policy directing the property owner to remove accumulated snow
“within 24 hours of the end of the snowstorm.”
One agency allows up to 48 hours to get the sidewalk cleared. However, if necessary, some cities will
assist with snow removal from sidewalks with contractors.
Penalties for property owners not complying with municipal ordinances include a
nominal $35 ticket for a first time offense to $100 per day.
The real question is, “How does an agency enforce its written
policy?” It turns out most agencies (70
percent) don’t issue tickets for property owners that don’t maintain their
sidewalks snow and ice free. However, the 30
percent that do issue tickets, obviously utilize their written policy with a strong
objective to maintain pedestrian safety and mobility.
This winter Madison, Wisconsin’s Department of Planning and
Development, which is charged with implementation of their written sidewalk policy, has
issued 820 citations. Complaints can be filed
on-line. William Stowe in Des Moines said
city inspectors have ticketed 250 people this winter for violating the city’s
sidewalk ordinance. And in West Des Moines,
Bret Hodne reports they have issued 51 tickets of which four required the city,
ultimately, to step in to finally get the sidewalk clean.
If a pedestrian slips and falls on a poorly-maintained sidewalk, it
often leads to a lawsuit alleging negligence. Half
the time, attempts to be compensated for such injuries draw in the public agency –
even when the homeowner has the “primary” responsibility. In only about a quarter of the suits is the
homeowner alone targeted for legal recovery.
Over half (58 percent) of the agencies responding to our survey
reported being sued for a sidewalk accident. Some
agencies have successfully defended themselves. Some
settled out of court; the City of Chilliwack near Vancouver, British Columbia, for
example, reported recently agreeing to a $25,000 settlement after being sued back in
1996/97 when a lady fell on an ice-covered sidewalk where the city was the adjacent
property owner. All of them incurred legal expense to defend themselves.
Last year I remember reading an article titled “Sidewalk ice
lands residents in court” in the Detroit Free
Press. It highlighted how 63-year-old
Sohpia Kratsas and 28 other Lincoln Park residents were charged with failing to remove
their snow from the sidewalks in front of their houses.
The charge is a misdemeanor punishable by up to 90 days in jail and a $500
fine. Specifically, in Lincoln Park, as in
metro-Detroit, communities, homeowners must remove snow from the sidewalk within 24 hours. Salt or sawdust must be placed on patches of ice
within 12 hours.
In seems when postal workers can’t easily travel the sidewalks
in Lincoln Park, the city clerk is notified. The
clerk mails copies of the city ordinance to those in violation. Someone is sent out to inspect the situation, and
if the problem persists, a ticket is issued. The
first time Kratsas heard of the city ordinance was when a copy arrived in her mailbox with
her ticket. The ticket charges her with one
count of snow/ice accumulation. It was issued
on Feb. 10 for snow that fell on Feb. 4.
While most of us accept the duty of shoveling our own sidewalks, some
citizens go above-and-beyond. Nick Coleman, a
staff columnist for the Twin Cities Pioneer Planet
writes, “I want the sidewalks shoveled, and I want them shoveled now. I have been wielding the winter tools for 40 years
now, and I approach shoveling as an art form…I even shovel a path through the yard so
the mail carrier doesn’t have to wallow on his journey to my door…I shovel
figure eights into the back yard drifts so my dog can take her exercise without
drowning…I have even sneaked across the street to dig through the plow-drifts
blocking my neighbor’s walkway…shoveling is my passion.” Needless to say, Coleman exceeds any
municipality’s expectations.
Some cities don’t depend on homeowners; they clear sidewalks
with municipal crews. Frank Blues of the City of Prince George in Central/Northern BC,
notes his city provides sidewalk service to the community.
Municipal crews operate sidewalk plows fitted with rear hoppers to
distribute salt or sand depending on conditions. This
equipment is very limited when ice buildup occurs. Their
specific sidewalk snow removal policy provides for snow removal when accumulation exceeds
50mm.
From the other coast of Canada comes the other extreme. In the Jan. 9 St. John’s, NF Telegram, Mayor Andy Wells conceded defeat in
efforts to keep sidewalks safe; he advised that pedestrians are better off walking in the
street because the city can’t keep 1,000-2,000 kilometers of sidewalks plowed and
salted.
I just received a copy of “Contracting for Snow Removal Business – Watch Your Step – A Greensure Risk Management Program” from Scott McEachern a.k.a. The ‘Snow Man.’ He makes his living talking about how a person can sue for “slip and fall” injuries. He strives to prove a better understanding of the potential liabilities arising from snow removal operations and the methods of reducing and limiting risk. His primary focus is Canada since he hails from Lindsay, ON. He points out that a Canadian contractor is subjected to snow removal work as defined within the “Occupier’s Liability Act” which places the contractor into a position of having to defend its actions as being ‘reasonable.’ McEachern goes on to cover what can be done, contract clauses and negotiations, subcontracting responsibilities, site maps, a defense preparation, data collection, choosing better customers, how insurance companies react, and out of court settlements. Want more information? E-mail McEachern, or write him at Reeds & Associates, 232 Kent St., W. #5, Lindsay, ON, Canada, K9V 6A4.
One thing for sure, whoever is responsible, we want to prevent bodily
injuries from occurring. On Dec. 17, baseball
commissioner Bud Selig, 66, broke his left kneecap after slipping on the ice. This was after Milwaukee was hit with 13.5 inches
of snow and slushy rain that froze as temperatures dropped to 15 degrees. Could this accident have been prevented? Possibly.
Slips and falls are a major health care cost, to say nothing of the pain and suffering of someone injured in a fall on a slippery sidewalk. Municipalities may have “delegated” responsibility for clearing sidewalks to homeowners, but they cannot hide when inadequate performance by homeowners leads to an injury accident and when “ambulance chasing” lawyers are looking for “deep pockets.” Just how many resources should be devoted to enforcing sidewalk-clearing ordinances is a judgment for local politicians, but public works officials and risk managers should identify potential liabilities to elected policy-makers. After all, the public’s demand for winter safety and mobility isn’t confined to roadways alone, it includes pedestrian safety and mobility, too.
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