Broken Sidewalks: Why Homeowners May Not Win Against City

by David H. Glass

Case law is well established that a landowner is responsible if injuries occur due to the landowner's creation of a defective condition on the sidewalks (Broken Sidewalks Build Pathways to Controversy, Feb. 8, 2013).

If the landowner has nothing to do  with the creation of a defective sidewalk, liability should rest with the City. In a Georgia Appellate case, Reed v. Baston-Cook Co., (1970) the Court reasoned:

Where the injuries occur not on the property but on a sidewalk adjacent thereto, a different rule is applicable. 'The law places upon a municipality the duty of keeping its sidewalks safe for travel in the ordinary manner. Codes, §§ 69-301, 69-303; Hammock v. City of Augusta, 83 Ga.App. 217, 63 S.E.2d 290. The placing of such responsibility upon municipalities relieves an abutting property owner unless he caused or actively participated in causing the obstruction or defect in the street or sidewalk.' Rhodes v. Perlis, 83 Ga.App. 312, 313, 63 S.E.2d 457, 458. The cases cited by the plaintiff are also authority for this rule. For, as was held in Georgia Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 599, 75 S.E. 664, 665: 'An owner of property abutting upon a street or highway is not, by virtue of being such owner, liable for defects in the street or highway. But this rule has no application where the owner of abutting property creates a defect in a street or highway or a nuisance therein. In the latter event he is liable, not because he owns the abutting property, but because he creates or maintains the thing from which injury results.' (Emphasis supplied.) See also Kelisen v. Savannah Theatres Co., 61 Ga.App. 100, 103, 5 S.E.2d 712, and others.

[122 Ga.App. 806] In Goldman v. Clisby, 62 Ga.App. 516, 8 S.E.2d 701, the plaintiff sued the defendant, a landowner, for an alleged negligent condition created on a public sidewalk by an independent contractor working for such landowner in accomplishing repairs to the landowner's premises. The court found no duty owed to the pedestrian by the landowner unless the landowner was the person directly responsible or unless he had ratified the wrong by accepting the property after the completion of the work by the independent contractor. It then held: 'This principle (ratification), however, will not cover defective conditions caused by such independent contractor on the premises of third parties, although such defective conditions were created by such independent contractor during the course of the work or repairs on the owner's property.'

However, it seems a municipality is allowed to pass an ordinance that would pass responsibility onto an adjacent landowner.  In a 1939 case, Kelisen v. Savannah Theatre Co., the Plaintiff chose not to sue the City, but to sue the adjacent landowner.  The landowner tried to have the case dismissed, saying the City is the proper Defendant, but the Court denied the Motion, thus setting the precedent that a landowner can be responsible for a City sidewalk if he/she created the defect or allowed a known defect to exist for a period of time.  The Defendant didn't challenge the constitutionality of the Ordinance, so the Court remained silent on the issue.  If you read the Kelisen case, it seems like the Court may have thrown out City's legislation that shifted responsibility to the landowner.

The State Constitution does grant our cities the power to tax and pass laws that they see fit.  If someone is trying to fight the City's authority to pass the Ordinance, they are probably not going to win that argument.  But, it seems the Supreme Court has never ruled on that issue.  So, who knows?  Bottom line, it would be an expensive endeavor to hire a lawyer and fight this issue all the way through the Appellate Courts.

I also disagree with the 'Atlanta Lawyer' comments where he/she thinks the City would be 'scared' by a class action lawsuit.  I have sued the City of Atlanta, and they are never scared.  They fight every suit with vigor (maybe too much at times). If that lawyer wants to take the case pro bono, I wish them the best of luck.

If I owned a home where the sidewalk was in serious disrepair, I would pay to fix it since it seems Georgia law would allow a pedestrian to sue me if the defective condition has existed for a very long time.

Since those homeowners were only given a few days to make a decision, they could file for a TRO to stop the City from doing the work and sending them an invoice. Hope that helps.

Mr. Glass, a resident of Summerhill, is a licensed, practicing Georgia attorney. His opinion does not create an attorney/client relationship, nor should anyone rely on this opinion when making a legal decision.