Uneven Sidewalk – Who is Liable?

Is there anyone who hasn’t noticed sidewalks are often cracked and uneven? Sidewalks take a lot of abuse. Maintenance trucks and construction equipment, fire trucks, and foliage roots can all cause damage. Settlement alone makes sidewalks crack and be uneven. Sometimes, a person trips or falls because of sidewalk conditions. That can result in serious injury.

This is America, land of the lawsuit. The first thought of a person injured by tripping over a sidewalk crack may well be who can I sue, not what doctor I should see. If the injury turns out to be serious, even those who did not think about a lawsuit eventually come around. Who should a person injured by tripping on the sidewalk sue? The answer can depend on where the person gets hurt.

Most sidewalks are intended for public use as a walkway or bikeway. A sidewalk may or may not be on private property. When looking for a defendant, an early question is who owns the sidewalk property? The property owner is almost always liable for injuries caused by failure to properly maintain a sidewalk.

What about sidewalks that are intended for public use and are in the right-of-way? That is the situation with most of the sidewalks in Florida. The sidewalk is parallel to the adjacent road and just off of the neighboring private property. Although sidewalk construction is somewhat slapped – and the actual location often crosses property lines.

Most Marco Island sidewalks are in the right-of-way, not on private property. At common law, the owner of property next to a sidewalk has no duty to maintain a public sidewalk. That would mean Marco Island homeowners are off the liability hook when someone trips on the sidewalk near the road. But Marco Island has an ordinance.

Marco Island ordinance makes it unlawful for any owner of property abutting a sidewalk to allow it to remain in an unsafe, dangerous, or detrimental condition. The property owner is also required to inspect the abutting sidewalk and promptly provide written notification to the City of any unsafe condition.

If the property owner fails to so notify the City and the damage was caused by a third party, a property owner is barred from defending the claim with the argument that the dangerous condition was caused by someone else.

A lot of homeowners do not know they are responsible for the sidewalk, and some will notify the City when they think the sidewalk needs repair. In response to that notice, the City may make the repair, much to the relief of the homeowners. But when the City makes the repair, the homeowner might be liable for the cost.

The ordinance makes the homeowner responsible for sidewalk repair expenses if the sidewalk was damaged by the owner, occupant, or agent thereof or third party.

Does the ordinance create liability for the homeowner when someone trips over a sidewalk crack? Florida cases say ordinances must be read closely to determine if they create liability and, if so, if there are any conditions. In 2022, one court found that a Sarasota ordinance did not automatically create homeowner liability because the homeowner was required to repair a sidewalk only after receiving notice from the City. Because no notice was given, the homeowner was not liable to a person injured on the sidewalk.

An earlier case reached the same conclusion involving a Jacksonville ordinance. Marco Island ordinances are similar to those in the Sarasota and Jacksonville cases, but that does not mean Marco Island homeowners are off the liability hook. Marco Island homeowners may still be liable depending on the facts of each case and particularly if the homeowner caused sidewalk damage.

Ordinances in many cities do not expressly grant an injured person the right to sue the abutting homeowner. When that is the case, the abutting homeowner is again off the liability hook. In a recent Sarasota case, the court explained that an ordinance that requires an abutting property owner to maintain the sidewalk does not create civil liability but is merely a provision to secure public safety.

Is the City liable? Possibly. Even though homeowners are delegated maintenance responsibility, maintenance of public sidewalks is a proprietary function. Since maintaining sidewalks is proprietary and not uniquely governmental, sovereign immunity does not protect the City from claims for negligence concerning sidewalk conditions.

As long ago as 1915, Florida’s Supreme Court ruled that an ordinance authorizing a City to require abutting homeowners to maintain sidewalks did not relieve the City of its duty to exercise diligence in repairing defective sidewalks or for liability for negligence concerning sidewalk repairs. City liability is not automatic. An injured person must prove the City knew about the defective sidewalk and failed to fix it. Even then, the City is not liable for every sidewalk defect because the City is only required to keep a sidewalk in “reasonably safe condition for pedestrian traffic.”

Last issue for liability in a defective sidewalk case is negligence of the injured person. Florida uses the concept of comparative negligence, meaning when someone’s own negligence contributes to injury, liability is apportioned.

Ordinances and facts combine to determine liability in a defective sidewalk claim. Trip and fall is only the beginning in these cases.