Memorandum

City of Lawrence

City Attorney’s Office

TO:	Diane Stoddard, Interim City Manager
FROM:	Toni R. Wheeler, City Attorney
C:	Casey Toomay, Assistant City Manager
DATE:	February 4, 2016
RE:	Overview of Sidewalk Maintenance Laws

This memorandum provides a brief overview of state and local laws related to sidewalk maintenance. 

In Kansas, property owners are generally required by law to maintain sidewalks adjoining their property.  Under Kansas case law, the abutting property owner’s duty is owed to the public, and not to individuals.  The abutting property owner is not liable for personal injuries sustained by pedestrians injured by sidewalk defects, unless the abutting owner created the defect and the defect amounts to a nuisance.  See Harris v. McConnell, 194 Kan. 800, 401 P.2d 908 (1965).  

If the City assumed responsibility for the maintenance of sidewalks in city right-of-way or City pedestrian easements, the individual property owners would be relieved of the maintenance responsibility for those sidewalks. The City would then step into the shoes of the abutting property owner.  Once the City took over maintenance responsibilities, the City may be liable for damages caused by the negligent or wrongful acts or omissions of its employees under those circumstances where a private person would be held liable (See K.S.A. 75-6103(a)), unless an exception in the Kansas Tort Claims Act applied.    

When a city undertakes the maintenance of all sidewalks, there may be an increased potential for liability if a person is injured while using a sidewalk. Kansas appellate courts have long held, however, that cities are not required to provide “perfect” sidewalks, and recognize that the financial burden of doing so would be too great. Instead, cities must only provide sidewalks that are “reasonably safe for use.” Elstun v. Spangles, Inc., 289 Kan. 754, 757-58 (2009), citing Taggart v. Kansas City, 156 Kan. 478 (1943). Whether a particular sidewalk imperfection would rise to the level of imposing liability on the city is fact specific.  There is no bright line rule on sidewalk liability – those matters should be considered on a case-by-case basis.

Undertaking the maintenance and repair of all sidewalks may present new challenges during the winter when snow and ice accumulate, particularly in light of the City’s snow removal ordinance (See Section 16-115). Kansas appellate courts have addressed this question previously, and generally hold that a city has no duty to clear a sidewalk if it does not receive sufficient notice—either actual or constructive—and a reasonable opportunity to respond. Lumbley v. City of Coffeyville, 2004 Kan. App. Unpubl. LEXIS 486 (2004), citing Blankenship v. Kansas City, 156 Kan. 607 (1943); Speakman v. Dodge City, 137 Kan. 823 (1933). The Lumbley court, citing the earlier Speakman decision, said that the law does not require cities to remove snow and ice from many miles of sidewalks because such a requirement would be “unreasonable and impracticable.” The court also noted that when snowy or icy conditions exist, they are usually obvious to the public and anyone using the sidewalk is cautious and warned of the danger. “‘To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for.’” Lumbley, citing Speakman, 137 Kan. 823, 825-26. Accordingly, there is no duty for cities to clear sidewalks they maintain unless they (1) have notice of the dangerous condition, and (2) fail to address it within a reasonable amount of time.  The City’s snow removal ordinance may however, impose a duty on the City, or create an expectation by the property owners that the City will remove the snow and ice in accordance with the City code provision.  Similarly, a City Code provision prohibiting an owner or occupant of lots or parcels from permitting earth and other debris to accumulate on the adjacent sidewalks may also increase the demands on the City to monitor and clear accumulated dirt and debris from sidewalks.

If a city were sued for personal injuries sustained while using a sidewalk in disrepair, the Kansas Tort Claims Act (KTCA) would likely control. That Act provides that government entities are liable for damages caused by negligent or wrongful acts if a private person, committing the same conduct, would be liable. See K.S.A. 75-6103. There are several exceptions to that general rule of liability, including that a governmental entity or its employee shall not be liable for “snow or ice conditions or other temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of the governmental entity.” K.S.A. 75-6104(l).

Although the City may have defenses available to it to avoid liability for personal injury claims associated with the City’s maintenance of sidewalks, there will be increased costs in processing claims and litigating cases.  Under current law, the City is clearly not responsible for personal injuries on non-city sidewalks so we are able to avoid costs associated with claims and litigation.  That would change if we maintain sidewalks in the future.  The City does not have an insurance policy that would cover these claims and judgments.  The claim payments, settlements, judgments and attorney’s fees would have to come from budgeted funds.