Who’s to blame for an uneven sidewalk?

Last week’s column, which addressed a question from a woman whose father fell and broke his hip at a supermarket, triggered additional questions from readers. This week, Brett in the East Bay asks whether you can bring a lawsuit for injuring yourself walking on an uneven sidewalk.

At the outset, simply because a person falls and is injured on another’s property is not sufficient to recover damages against the property owner, no matter how serious the injury. The injured person must show:

1. The defendant owned or controlled the property where the plaintiff (the person bringing the lawsuit) was injured;

2. The defendant was negligent in the use or maintenance of the property; and

3. The defendant’s negligence was a substantial factor in causing the plaintiff’s injury.

The first question — who owns the property? — is particularly relevant in regard to slip-and-fall accidents on sidewalks. In most cities in California, local ordinances state it is the responsibility of the property owner to maintain in good condition the sidewalks, curbs and gutters that border his or her property. These ordinances often specify the degree, such as three-quarters of an inch, to which cracks or uneven payment are allowed. Thus, if you fell on a cracked sidewalk in front of a private residence, the homeowner could be held liable.  

This, however, is not the end of the inquiry. Another factor to consider is what caused the damage to the sidewalk. A homeowner is responsible for repairing damage due to normal wear and deterioration. If a vehicle accident, water main break, street subsidence or roots from a city-owned tree damaged the sidewalk, then the person who caused the accident or failed to undertake repairs properly with the city may be responsible.  

Of course, if the city or a public agency is the landowner adjacent to the damaged sidewalk, the city or public agency bears responsibility to repair the sidewalk.

Brett, as you can see, these cases require a great deal of investigation. The law is somewhat complex. I suggest you contact a good trial lawyer promptly to evaluate the facts.   In California, the statute of limitations (deadline to file a lawsuit) against a public agency is extremely short.  You must file a claim within six months of the injury or risk losing your right to recover damages.

Jasmine in the Richmond District asks if you must show that the property owner knew of the hazard to bring a lawsuit.

Jasmine, the answer is no. In some cases, it’s clear the property owner was aware of the dangerous condition and failed to address it. In other cases, there will not be any evidence that property owner was aware of the hazard. By itself, this is not a complete defense.

Property owners have an affirmative duty to learn of the condition of their property. They must use reasonable care to discover any unsafe conditions and repair, replace or give adequate warning of any hazards.

For example, clogged gutters can send large amounts of water off a building, flooding adjacent sidewalks.  A landlord should periodically inspect and clear any debris from the gutters, particularly if there are trees or bushes next to the apartment building. A landlord who fails to inspect and clean the gutters could be held liable if a person fell on the slippery pavement during a rainstorm, even though the landlord did not know at the time that the sidewalk was flooded.

My recommendation, Brett and Jasmine, is that if you or a family member were injured in a fall is to document the dangerous condition in a way that will show its physical characteristics. Use a ruler to photograph the dimensions of the defect. Your photos should also show the path you took. Many defects are not visible to even the most careful pedestrians.

You need to preserve important evidence. Tell the property owner to preserve any video of the fall. Do not wear the shoes that you had on at the time of your fall again. Put them in a bag and store them. Your attorney may need to have the shoes examined by an expert to determine the available traction on the bottom of your shoes at the time of your fall.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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