Cities get sued. A lot. One of the most common kinds of lawsuits against a city arises from injuries caused by an allegedly dangerous condition of city property (like a sidewalk, road, or trail in a city park). Although it may not always be possible to avoid lawsuits based on the dangerous condition of city property, there are actions a city can take to at least make them easier to defend. This list may also be useful to plaintiff’s counsel going on the offensive.
- Shift liability to adjacent owners. Consider enacting an ordinance to impose liability on adjacent property owners for injuries to persons resulting from dangerous conditions on sidewalks. See Str & H C §5610; Gonzales v City of San Jose (2004) 125 CA4th 1127. Of course there are policy and political implications with enacting such an ordinance.
- Document reasons for actions outside of guidelines. Be aware of which procedure manuals, guidelines, or policies are “mandatory,” as opposed to “advisory,” in nature. When deviations from guidelines are necessary, city employees should clearly document the reasons for taking such actions.
- Make manuals flexible. Inspection manuals used by the city should explain that significant discretion is vested in an inspector. Any manual or guidebook created by the city for the use of its employees should have a disclaimer at the beginning stating that such guidelines or “goals” are not intended to be a legal standard, but are merely intended to serve as a reference source for employees.
- Establish design immunity when making improvements and modifications. When a public improvement is constructed or modified, ensure that each document is created and maintained by city employees to help establish the “design immunity.” Any deviation from the plans made at the construction site or elsewhere should be documented and approved in writing before construction.
- Keep good records. Create and maintain an adequate recordkeeping system, and store records to ensure easy and reliable access.
- Get defense, indemnity, and hold-harmless agreements and insurance. Obtain hold-harmless agreements from each and every possible source for any work or project the city undertakes and make sure it contains an obligation to defend the city.
- Follow up on notices to repair. If an adjacent property owner is given a notice to repair the owner’s sidewalk, the city should follow up on the notice in a timely way to make certain that the repairs are made. If an adjacent property owner fails to make timely repairs, the city should perform the work and place a lien on the property for the cost of repairs. The city doesn’t escape liability simply by issuing a notice to repair; the city normally remains ultimately liable for the condition of its sidewalks.
- Monitor problem areas. Inspect areas that have been brought to the attention of the city as “trouble spots” and document each inspection. If a condition is repaired, check it later to make sure it hasn’t deteriorated.
- Inspect for proper visibility of signs and warnings. Visibility problems are a source of alleged liability. Red zones for parked cars and notices to property owners to eliminate obstructions such as overgrown shrubbery are ways to promote visibility.
- Document accident scenes. Immediately investigate and document all serious and fatal accident scenes. Preserve any and all evidence that could be used in the city’s defense. Photograph and film all relevant approaches to the accident scene from sufficient distance to address visibility and related considerations.
- Keep investigative photographs, including digital data. These should be held until the statute of limitations has run in all cases with potential exposure to the city. Important details lost in poor copies of photographs may jeopardize the ability to perform “photogrammetry” or various other accident reconstruction techniques.
- Maintain accident history request forms. These forms should be printed and filed so that the city and its defense counsel know who requested what information and when, and especially what information and documents were given out in response to the request.
All aspects of tort liability and litigation against cities are covered in The California Municipal Law Handbook, chap 13. Also check out the discussion of public entity liability for dangerous condition of public property in CEB’s California Government Tort Liability Practice, chap 12.
Other CEBblog™ posts you may find useful:
- Be Ready for the Defense When Suing a City for a Pothole
- Are Public-Private Partnerships the Solution for CA’s Infrastructure Gap?
- File a Claim or Forget Your Suit Against a Public Entity!
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