Premises Liability (Sidewalk Maintenance and Repair Issues)

Another area of pedestrian litigation arises when an individual is injured due to the failure to properly maintain a sidewalk. Pedestrian trips and falls as the result of disrepair of a sidewalk can create liability both for private entities as well as government entities who have responsibility for maintaining the sidewalk. 86 Am. Jur. Proof of Facts 3d, Liability of Municipality or Abutting Landowner for Injury Caused by Defective Condition of Sidewalk, Sect. 327 (originally published in 2005); 88 A.L.R. 2d 331, Liability of Abutting Owner or Occupant for Condition of Sidewalk, Sect. 331 (originally published in 1963). An attorney initially faced with a claim of this nature, must immediately explore whether or not the sidewalk at issue was responsibility of a private business or individual or a government entity. Depending on circumstances, there can be potential liability of more than one entity or individual.

In the event a government entity is responsible for the sidewalk at issue, it is imperative that an attorney thoroughly explore whether or not the state where the injury occurred requires ante litem notice to the government entity. If such notice is required, it generally must be given far in advance of when the statute of limitations would normally expire.

Under the laws in most states, a business and a property owner must make certain that the approaches and premises are safe for individuals. See generally, O.C.G.A section 51-3-1 (Georgia Statute). Falls on sidewalks can often be caused by cracks in the sidewalk, disruption of the pavement, inclement weather conditions which have made the sidewalk hazardous and even the failure to properly construct the sidewalk in a slip resistant manner. West v. City of Hoopeston, 146 Ill.App.3d 538, 497 N.E.2d 170 (1986) (broken area between slabs in the sidewalk sufficiently dangerous to justify award for Plaintiff); City of Logansport v. Gammill, 128 Ind.App. 53, 145 N.E.2d 908 (1957) (pedestrian injured in fall on sidewalk which was cracked entitled to recover); Cooper v. Capital Investment, LLC, 204 S.W.3d 331 (2006) (jury issue presented with respect to whether weather condition of ice and snow not removed by property owner created dangerous condition).

When evaluating whether or not to accept a sidewalk defect case, the attorney must make a thorough analysis of the plaintiff’s conduct related to the fall. It is important to determine whether or not the plaintiff was maintaining an appropriate lookout and why the plaintiff was unable to see the defect before falling. This can often be explained due to the lack of a significant contrast in color at the area of the defect thereby making it less visible to the pedestrian. In addition, the majority of states do not require the plaintiff to continuously look at the ground with walking. Robinson v. Kroger Company, 268 Ga. 735, 493 Se.2d 403 (1997). However, this is balanced against whether or not the defect is “open and obvious,” in which case the client can generally not recover for the fall. Hoffner v. Lanctoe, 492 Mich. 450, 821 N.W.2d 88 (2012).

Another area in which sidewalk claims arise is in the circumstance of a change in elevation which is not indicated in any manner. For instance, a sidewalk which abuts a handicap ramp should be painted to show the change in elevation as the ramp descends into a parking lot or other area. While such a defect may or may not be a code violation depending on the circumstances, there is extensive authority in the insurance industry related to the importance of utilizing paint to show a change in elevation in these circumstances. Slip, Trip, and Fall: Prevention Guide, EMC Insurance Guide, pg. 11; GuideOne Center for Risk Management, Slip and Fall Prevention: Walking Surfaces, pg. 4.