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Liability and those suffering sidewalks

Jim Porter

Joanne Gonzales tripped and fell over a rise in a sidewalk in front of a commercial building on East Santa Clara Street in San Jose. The sidewalk was owned by the city. Charles Huang owned the adjacent commercial building.-

Did Huang bear any responsibility for the woman’s injuries when he didn’t own the sidewalk? You would think not.

San Jose, a charter city, had an ordinance making owners of property abutting city-owned sidewalks liable to those who are injured as a result of an unsafe condition on the sidewalk. How convenient. We should all be able to pass laws that say if someone is injured on our property, our neighbor is responsible.-

The California Government Tort Claims Act establishes that a public entity is liable for injuries caused by a dangerous condition of its property when either (a) a public employee created the dangerous condition or (b) the municipality had notice of the dangerous condition and sufficient time prior to the injury to fix the condition.

So state law essentially makes San Jose responsible for Joanne Gonzales’ injuries if the raised portion of the concrete amounts to a dangerous condition and the city had notice of the condition and time to fix it.

Have you ever seen a sidewalk that doesn’t have a serious crack or raised portion of concrete ” especially in our area? Have you ever seen a sidewalk in our area ” one that lasted through a winter?

The legal issue in this exciting sidewalk case is whether state law, which makes the City of San Jose potentially liable for the sidewalk injury, pre-empts (blows out) San Jose’s ordinance that makes the adjoining property owner liable. If state law pre-empts local law, guess who wins.-

A city charter ordinance will be pre-empted if the ordinance conflicts with state law, such as if the local municipality “duplicates, contradicts or enters an area fully occupied by general (state) law.”

So you’re smart: Is San Jose’s sidewalk ordinance valid?

The court finally determined that San Jose’s ordinance does not absolve San Jose of responsibility for dangerous conditions on public sidewalks; rather it provides an additional level of liability on adjoining owners. The two laws are not inconsistent, they are compatible.-

Abutting landowners like Huang would have no incentive to maintain the sidewalks adjacent to their property unless they could be made liable for injuries on the sidewalk. Maybe, but normally one person doesn’t have to maintain someone else’s property, and does San Jose want dozens of landowners working on its sidewalks?

In conclusion, San Jose’s law making innocent Charles Huang potentially liable remains intact, as does state law making the City of San Jose potentially liable.-

Joanne Gonzales, who ought to watch where she walks, is the only winner.- She and her attorney.-

Sidewalk tip of the day

If the sidewalk in front of your place looks bad, ask the local municipality (in writing) to fix it and keep the letter. Be advised however, if the sidewalk’s on your property, you just shot yourself in the foot.-

——— Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site, http://www.portersimon.com


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