LIABILITY IMPLICATIONS OF OAKLAND’S NEW SIDEWALK ORDINANCE
Authored by Jonathan Varnica, Esq.
On July 9, 2019, the City of Oakland enacted a new sidewalk Ordinance. The Ordinance will impact the liability of property owners in the City of Oakland. The following is an analysis of its implications.
By enacting this new Ordinance, Oakland joined other California municipalities in passing legislation that shifts liability for injuries on public sidewalks to the adjoining landowner. Traditionally, under the common law, a landowner did not have any duty to repair abutting sidewalks along a public street, and did not owe any duty to pedestrians injured as a result of a defect in the sidewalk. [Schaefer v. Lenahan (1944) 63 Cal. App. 2d 324, 326]. California altered this principle in one respect with the enactment of Streets and Highway Code section 5610. That section established a duty for landowners to repair sidewalks by passing maintenance costs onto the adjoining landowners. However, section 5610 did not create tort liability on the part of landowners to injured pedestrians unless the landowner created the defect or exercised control over the sidewalk. [Schaefer at 327-328]. Otherwise, section 5610 is silent as to a landowner’s liability for injuries to pedestrians.
With the absence of a state law on the issue, an adjoining landowner has no affirmative duty to keep a public sidewalk in a safe condition, but a municipality may alter these principles through local Ordinances. [Williams v. Foster (1989) 216 Cal. App. 3d 510, 521]. The result is that an landowner’s face differing liability across the sprawl of a major California metropolis. For example, both the City of Berkeley (§16.04.010) and City of San Jose (§14.16.2205) have local Ordinances making the abutting landowner liable to pedestrians who are injured on unsafe sidewalks. However, Oakland did not have such an Ordinance, until now.
In July 2019, the Oakland City Council revised its Ordinances with the express desire to limit the City of Oakland’s liability exposure for injuries resulting from sidewalk defects. Oakland Ordinance section 12.22.040 was enacted, and creates a cause of action against an adjoining landowner on behalf of pedestrians injured on Oakland’s sidewalks. This new Ordinance shifts liability for pedestrian injuries on sidewalks to the adjoining landowner. Section 12.22.040 provides:
“If, as a result of the failure of any property owner to maintain the sidewalk area in a nondangerous condition, any person suffers injury or damage to person or property, the property owner shall be liable to such person for the resulting damages or injury. Any person who suffers injury or property damage as a result of the failure of the property owner to so maintain the sidewalks and sidewalk areas shall have a cause of action for such injury or property damage against such property owner. The City of Oakland, shall have a cause of action for indemnity against such property owner for any damages it may be required to pay as satisfaction of any judgment or settlement of any claim that results from such injury to persons or property as a legal result of the failure of the owner to maintain the sidewalks and sidewalk in accordance with this Chapter.” (can you italicize this section?)
Of note, the Oakland Ordinance goes further than other municipal Ordinances by attempting to fully insulate the City of Oakland for tort liability in connection with pedestrian injuries. In fact, Oakland Ordinance section 12.22.040 creates a cause of action for indemnity in favor of the City of Oakland against the landowner for any damages paid as a result of an injured pedestrian claim. The City of Oakland’s indemnity provision potentially absolves the City of Oakland from tort liability for any sidewalk injuries, but the indemnity provision is arguably unconstitutional as it is most likely preempted by State Law. [See e.g. Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1499, fn.2 which questions in dicta whether an indemnity provision shifting all tort liability to the property owner is constitutional pursuant to Government Code sections 831 and 835].
While there are likely to be Court challenges to the new Ordinance, the takeaway from this new Ordinance is that landowners in Oakland should be proactive in addressing defects on adjoining sidewalks.
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