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CR 92-92 Sidewalk RepairApril 16, 1992 Proposed Action. Staff recommends the following motion: "Move to approve Legislative Policy #8 -G, Sidewalk Repair and Maintenance Policy." This action would set in motion a sidewalk inspection of zone 1 and a subsequent sidewalk project later this year. Overview. On February 11, Council reviewed the attached sidewalk repair and maintenance policy. They generally felt the policy was a good idea and that the city should probably implement such a policy in 1992. One of the main concerns Council had with the policy was how residents would pay for the repairs, and should the city participate in the funding. The attached article by Ellen Longfellow, League of Minnesota Cities, Staff Attorney, does an excellent job of describing this sidewalk issue. Staff strongly recommends that Council read this article for background information. Primary Issues to Consider. SIDEWALK REPAIR AND MAINTENANCE o Why is a policy needed? o How will the residents be affected by the policy? o What will be Councils role in the policy implementation? o What are likely issues that Council will be confronted with at the sidewalk public hearings? o Should the city help fund the repairs? o What if residents want their sidewalk removed and not replaced? o How will new sidewalks be addressed? Supporting Information. o Analysis of Issues. o Article by League of MN Cities Attorney o Proposed Legislative Policy #8 -G Lee €a blic Works Director Council Report No: 92 -92 • Council Report No. 92 -92 Page 2 Analysis of Issues. Why is a policy needed? The main reason a sidewalk repair policy is needed is to reduce the city's liability exposure from accidents caused by defective sidewalks. The city can never totally eliminate the possibility of getting sued for a sidewalk accident, but it can severely reduce the possibilities by adhering to a sidewalk repair policy. The attached article from the League of MN Cities Attorney does an excellent job of describing the entire process. Staff strongly recommends that Council thoroughly read this article. o How will the residents be affected by the policy? After the sidewalk inspection has been performed by city staff, residents who have defective sidewalks will be notified. The residents will have the opportunity to repair the sidewalks themselves, or have the city contract it out for them under one large project. Residents who choose to do it themselves will be given a deadline to have the work completed by. For those residents who want the city to do the work, did not respond at all, or did not complete the repairs by the deadline, the city will schedule an improvement hearing in accordance with Chapter 429 Assessment Procedures. The sidewalk repairs will then follow the schedule for a normal improvement project. o What will be Councils role in the policy implementation? Council will need to become involved in the repair process when the assessment procedures begin for the project. The difference in this type of project versus other recent improvement projects is that Council will be initiating the project, instead of accepting a petition, and will be required to order the improvement by a 4/5 vote. The remaining steps in the process will be similar to other improvement projects. o What are likely issues that Council will be confronted with at the sidewalk public hearings? The people that typically attend sidewalk public hearings will be the people who did not respond at all to the city's repair notices. Typical comments are: o My sidewalk isn't bad and does not need to be replaced. o How come you're making me fix my sidewalk and not my neighbor down the street. o I can't afford it. o I did not receive any notice that my sidewalk needed fixing until now. • Council Report No. 92 -92 Page 3 Staff will be addressing the first issue by video taping every property that did not respond or did not complete the repairs on time. Council will then be able to review the defective sidewalk at the Council meeting if someone claims their sidewalk isn't bad. The second issue will be answered by stating that other parts of the city will be inspected during the assigned year for that area. The city is split into zones to even out the work load for city staff. If we receive a complaint on a sidewalk, - city staff will inspect the sidewalk regardless of which zone it's in. The third issue will be the most difficult for Council to listen to. It's always hard to listen to this type of concern. Residents will be informed that they have the option of applying for a deferment. The forth issue will be handled by sending out more than one notice to ensure everyone is well aware of the city's program. o Should the city help fund the repairs? This question was brought up at the Council Work Session on February 11. A comment was made at the meeting that residents do not get total benefit from a sidewalk adjacent to their home, and therefore the city should help pay for the others who benefit from the sidewalk. This comment is hard to argue against except for the fact that the other people using the sidewalk probably live down the street and have a sidewalk adjacent to their property that is used by others on the street as well. In a neighborhood everybody uses each Others sidewalks as well as their own, and are therefore receiving more benefit that they probably realize. In a commercial area the sidewalks bring customers to their businesses and are therefore benefitting the property. The most important item in determining whether the city should help fund in the repairs is the liability factor. It appears that from prior laws suits the city's liability is far less if the city has a sidewalk repair program that requires the property owner to pay 100% of the repair costs. The city's liability exposure is not totally eliminated, but it does appear to be less. Staff therefore recommends that Council not modify the policy, and require the property owner to pay 100% of the repair costs. • Council Report No. 92 -92 Page 4 o What if residents want their sidewalk removed and not replaced? Staff will be informing property owners that this is not an option. If they are extremely serious about it, staff will inform them that should circulate a removal petition amongst their neighbors. If the petition has adequate signatures, Council will review the matter on a case by case basis. o How will new sidewalks be addressed? The placement of new sidewalks will be addressed in the city's Sidewalk /Trail plan that will be prepared this summer. Council will be reviewing the plan and formally adopting it. The plan will address what existing sidewalks must remain, and also what new sidewalks should be installed if the opportunity arises. • t1.70 Ellen A. Longfellow, LMCIT Staff Attorney 6 • It is a winter day and Iris Smith is walking downtown to do some shop- ping. Suddenly she steps on slippery spot and falls. In another area of the city, Fred Jones is out on his daily walk. Suddenly, he stubs his toe on a crack in the sidewalk and falls. If they were injured as a result of these falls, there is a good chance that Mrs. Smith and Mr. Jones will bring claims against the city for payment of their damages. When is a city legally responsible for damages when someone falls on the sidewalk? Is there anything that a city can do to reduce the risks of such falls or to reduce the possibility that the city will be responsible for those damages? Is the adjacent property owner ever responsible for the condition of the sidewalk? Minnesota law Under Minnesota law, the city has the duty to exercise reasonable care to keep its sidewalks in a safe condition. The sidewalks are in the city street right -of -way and are the city's primary responsibility. The city is not an insurer of its sidewalks, however, which means that someone who sues the city must prove that the city did something wrong or was negligent. In order to do this one must show that: there was a "defect" in the sidewalk; that the city had actual or constructive notice of the defect; that after receiving such notice, the city failed to remedy the defect within a reasonable time; and that the failure caused the person's injury. The defect There is no law, rule, or case that has defined what constitutes a "defect" in a sidewalk. In one case, Brittian v. City of Minneapolis, the court said a city is not liable for every "mere inequality or irregularity in the surface of the way." Courts have looked at such factors as the size of the difference, its location, and if it is in a heavily traveled area in determining if there was defect. • Similarly, in regard to ice and snow, there is a rule that says that a city is not responsible if a sidewalk is "merely slippery." There must be evidence that the snow and ice was uneven or rough or that there was a dangerous accumulation. Another consideration Trees in sidewalks can cause prob- lems unless a city uses a treatment such as the one at left. Photos by Brenda Piatz. Minnesota Cities • for liability for ice and snow is whether it was the result of natural or artificial conditions. A city may be more likely to be found responsible if it was created by artificial conditions rather than by natural weather conditions. Notice Actual notice exists when someone told the city about the particular prob- lem before the fall. Constructive notice exists if the city would have known about the problem if it had done reason- able inspections. Failure to remedy the defect As in the case of the defect, there is no set figure as what constitutes "reasonable time." In a recent case concerning ice and snow, Niemann v. Northwestern College, the court held that a reasonable time can begin after a snowstorm ends. The cause of the injuries Even if there was a defect and the city had notice of it and failed to correct it, the person still must show that the defect or the city's actions were the cause of the injuries. Immunity In 1986, the Minnesota Legsislature passed an amendment to the Minnesota Municipal Tort Liability Act which states that cities will not be liable for "any claim based on snow or ice con- ditions on any ... public sidewalk that does not abut a publicly -owned building or publicly -owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality." This does not take away the city's responsibility for exercising reasonable care for all sidewalks but does provide a basis for a dismissal of some snow and ice claims. The focus in these cases may be whether the city "affirmatively caused" the condition. In a case involv- ing snow on a street a court deter- mined that the immunity did not apply because the city created the condition by plowing the snow into a pile. (Robin- son v. Hollatz) Adjacent property owners Many cities have ordinances which require adjacent property owners to construct and maintain the public side- walks. Such ordinances usually say that if the property owner does not repair May 1988 the sidewalk or shovel the snow, the city will do it and charge back the cost on the owners property taxes. These ordinances are very helpful in creating a method for cities to pay for sidewalk maintenance. They do not, however, remove the city's responsibility for the primary maintenance of the sidewalk. The city has a duty to the public at large to provide safe sidewalks and it cannot delegate that duty to the adja- cent property owner. Adjacent property owners do have a duty not to obstruct or create problems in the public sidewalks. They may be responsible in some claims if they cre- ated the dangerous condition or if the instrument that created the condition was there for their benefit. For exam- ple, claims have resulted when some- one has tripped over a water valve cover on the sidewalk. The water valve was serving the adjacent property owner so thew owner would be respon- sible for that, at the same time as the city was responsible for the sidewalk. In some ice and snow cases, the con- dition is the result of water dripping from spouts or awnings on adjacent property owners buildings. This too could result in liability for the property owner. Reducing risks To reduce the risks of injury on sidewalks and at the same time reduce the possibility of successful claims, the city should follow these steps. Cracks around manhole covers and eroded areas in sidewalks could cause an accident and lead to suits against the city. 1. Determine what the city's cri- teria are for repair and replace- ment of sidewalks. 2. Develop a sidewalk inspection program. The inspection program would involve city workers and officials actually walking the sidewalks and not- ing any problems that they see. If the city has a limited number of personnel, it may want to focus first on well - traveled areas such as downtown dis- tricts. In addition to formal inspections, the city should train employees who are in a position to observe the side- walks while performing other duties to note any problems with the sidewalks and to report them to the appropriate personnel. 3. Keep inspection records. City employees should date and sign all inspection records. It is important that the city has records because by the time someone makes a claim, the employees may not be with the city any longer or may not remember. The records should also indicate what area of the city the employee inspected, any problems he /she discovered, and what the city will do or did about the problem. 4. Remedy any problems. The city could repair the problem itself or send a notice to the adjacent 7 • • property owner telling him /her to repair it and stating that if the owner fails to do so within a certain time, the city will correct the problem and charge the property owner for the cost of the repair. If a condition presents an imme- diate danger to people, the city should put a warning device over it. Employ- ees should keep records of all repairs. 5. Develop a complaint policy. The city should develop a policy on how to respond to complaints about sidewalk problems. This policy should include making a record of the com- plaint and a procedure that the city will follow after receiving the complaint. The records should indicate who noti- fied the city of the problem, the date, what the person said was the problem, and what the city did in response to the complaint. The city should inspect the problem area and decide if under the city's criteria, the sidewalk would need any repairs. The record should include a note as to whether there is a problem, and if repairs were neces- sary, or if the city put a warning device over it. WESTERN TANK & TOWER INC. P.O. Box 88007 Sioux Falls, SD 57105 TELEPHONE: (605) 338 -6506 or (605) 361 -0137 EXPERTS IN WATER TANK PAINTING & REPAIR Videotaped Inspections In Color • Bonded and fully Insured • AWWA Members • Over 17 years experience • Maintenance Contracts •Guarantees on Epoxy Coatings • Sand Blasting and Painting • New Bottoms and Sldewalls Installed 8 Design and construction issues Trees in sidewalks There have been many claims against cities for falls related to grates, curbs, and uneven areas around trees in sidewalks. Many options are avail- able for the sidewalk areas surrounding trees and the city should examine them carefully before deciding on which to use. The city council should document that it did consider different options and what factors were important in making its final decision. Such factors could be cost, maintenance, and advice from professionals such as landscape architects. Water valve covers Another design issue that is the focus of many claims against cities is the placement of water valve covers in sidewalks. The adjacent property owner may be held responsible for such falls due to the covers or at least share the responsiblity with the city. If the city knows of specific problems or reoccurring problems, it should attempt to remedy them as soon as possible. The city could also pass an ordinance or resolution stating that the adjacent property owner is responsible for the maintenance of the valve cover. Contracts and designs The city should keep records of all design and construction contracts for sidewalk projects. In some cases, the sidewalk problem may be the responsi- bility of the engineer, architect, con- tractor, or landscape architect and it is important to know who they were and what the specific contract said. As with other contracts, the city should ensure that there are hold harmless or indem- nify clauses in the sidewalk contracts. It is difficult for a city to have perfect sidewalks and the law does not impose a standard of perfection. A city must exercise reasonable care. Implement- ing sidewalk inspection and repair pro- grams shows that the city is concerned and that it is making an effort to maintain its sidewalks. If anyone would like further informa- tion about what cities can do to reduce their risks of liability for sidewalk falls, contact: North Star Risk Services, Loss Control Division Suite 550 1401 West 76th Street Minneapolis, Minnesota 55423 (612) 861 -8600 League of Minnesota Cities Insurance Trust 183 University Avenue East St. Paul, Minnesota 55101 (612) 227 -5600 Supporting cases Brittain v. City of Minneapolis, 250 Minn. 376, 84 N.W. 646 (1957) Hall v. City of Anoka, 256 Minn. 1314, 97 N.W.2d 380 (1959) Robinson v. Hollatz, 374 N.W. 2d 300 (Minn. App. 1985) Nieman v. Northwestern College, 389 N.W. 2d 260 (Minn. App. 1986) Robinson v. Hollatz, 374 N.W. 2d 300 (Minn. App. 1985) Sternitzke v. Donohue Jewelers, 249 Minn. 514, 83 N.W. 2d 96 (1957) • WE PROVIDE EXPERIENCED LEGAL REPRESENTATION TO CITIES EXPANDING •THEIR MUNICIPAL UTILITIES SERVICE TERRITORIES. Wagemaker Law Office 106 South Ninth Street Olivia, Minnesota 56277 Telephone: 612- 523 -2161 Minnesota Cities 1. PURPOSE 1.01 The purpose of this policy is to ensure that all sidewalks along the streets in the City of Hopkins are kept and maintained in a safe condition for use by the public. 2. GENERAL 2.01 This policy relates to repairs of sidewalks as outlined in Section 820.07 of the Hopkins City Code. The repair of sidewalks outlined in this section are eligible to be assessed under authorization of Minnesota State Statues Chapter 429. 3. POLICY 3.01 It shall be the policy of the city to inspect sidewalks along city streets once every four years in accordance with the zones described in Attachment "A" of this policy. Following sidewalk inspection, recommendations for repair will be made to the City Engineer. 3.02 Sidewalks shall be repaired in accordance with Minnesota Department of Transportation Standard Specifications for Construction, 1988 Edition, section 2521. 4. RESPONSIBILITY 4.01 It shall be the responsibility of the City Engineering division to perform sidewalk inspections on all such sidewalks designated for inspection during each given year. The City Engineering division shall keep signed and dated inspection records indicating areas inspected, problems discovered and recommendations to the City Engineer. 4.02 Any sidewalk repair recommendation approved by the City Engineer shall be repaired by and at the expense of the owner of the premise abutting the defective sidewalk. On street corners, repair of sidewalk panels which are bounded by the extension of the property lines and the street, but not directly adjacent to the property, will be paid by the city. 5. PROCEDURES LEGISLATIVE POLICY #8 -G SIDEWALK REPAIR AND MAINTENANCE 5.01 By reason of the fact that the following sidewalk conditions endanger life, limb, and property, they are hereby declared to be nuisances, to wit Legislative Policy Manual Policy #8 -G Page 2 a) Any crack fissure, 1/2 inch or greater raise between panels, hump, uneveness or condition therein of such width, height, depth or form that pedestrians lawfully using such walk might catch their shoes, feet, canes, crutches or other proper implements thereon or therein; or which might cause pedestrians using such walk to trip, stumble, or fall; or which endanger the use of such walks for travel with wheelchairs, perambulators or similar conveyances. b) Sags or depressions which are considered hazardous by the City Engineer. c) Accumulations of sod, vegetation or other materials creating hazardous conditions on such sidewalks, and any such accumulations extending more than three (3) inches over the edge of the sidewalk. d) Water service valve covers on the sidewalk which are not flush with the walk. Any such conditions noted during a sidewalk inspection or otherwise observed by city employees will be recommended for repair to the City Engineer. 5.02 Complaints regarding sidewalks shall be recorded by city personnel and permanently filed. Following receipt of a complaint, the City Engineering division will inspect the problem area and determine if repairs are necessary under this policy. Such repairs will then be recommended by the City Engineer. 5.03 If the City Engineer finds that any sidewalk abutting private property is unsafe and in need of repairs, he /she shall cause notice to be served ordering the owner of the property to correct the condition causing the nuisance within 20 days of receipt of notice. The notice will also state that if the repairs are not made within the specified time, the city will complete the repairs at the owners expense, and if unpaid it will be made a special assessment against the property. 5.04 If such sidewalk is not repaired within the specified time, or if proof cannot be shown that a contract has been signed to have the repairs completed, the city will cause the repairs to be completed at the owners of such premise expense and will cause the expense thereof to be assessed against the premise in accordance with Section 820.07, subd 3. of the Hopkins City Code. (PVT) • 0) L cy� fill MINNETONKA MINNETONKA 1 ; M I TCN OCR R TON RIDGE DR Ns SI MINNETONKA 1 L 1 B00 \ • EDINA I 2 .n THE CITY OF HOPKINS , MINNESOTA HENNEPIN COUNTY SCALE 0 800 fa 1 SCHEDULE OF IMPROVEMENTS 1 1992 2 1993 3 1994 4 1995 1600 SIDEWALK REPAIR ZONES B ♦SC S� 2 H ° tt 3 5 0 GOOD I ^a�� 51 J