McGuire, Thomas J.

English

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 9 | Issue 21958Liability of a Municipality for Defective SidewalksThomas J. McGuireFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. Ithas been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School ofLaw Scholarly Commons.Recommended CitationThomas J. McGuire, Liability of a Municipality for Defective Sidewalks, 9 W. Res. L. Rev. 225 (1958)Available at: https://scholarlycommons.law.case.edu/caselrev/vol9/iss2/13NOTEShave the authority to exclude evidence of a conviction which does reflectupon credibility if, in his sound judgment, the value of the admission isheavily outweighed by the -prejudicial effect it may have on the jury.This new rule would be a great step forward in furthering a "fairtrial" in both civil and criminal cases.ALAN S. SIMSLiability of a Municipality for DefectiveSidewalksIn determining the basis of liability for a municipal corporation'storts one could readily use the proverbial divining f6rk, one prong ofwhich is dubbed "sovereign immunity" and the other "corporate respon-sibility." The most promiscuous test is: municipalities are immune fromliability for torts which arise out of so-called "governmental" functions;liability is imposed for torts which spring from "proprietary" functions,3This categorical classification of municipal acts, as a basis for determiningliability, dates back to the eighteenth century2 when the operation of mu-nicipal government was relatively simple and resources for paying dam-ages were limited. Changing conditions have extended the scope of ac-tivities and the taxing powers of municipalities so that such a rule is in-compatible with the present concept of the role of government in its re-lationships with individualsAlthough immunity is still recognized in many areas of activity, it isno longer applied to injuries resulting from the defective repair and main-tenance of streets and highways.4 It is also quite generally held that amunicipality is liable for injuries resulting from the defective conditionof sidewalks.5 The Ohio legislature has placed the duty of maintainingstreets and sidewalks upon the city by statute.0'City of Hazard v. Duff, 287 Ky. 427, 154 S.W. 2d 28 (1941); Prunty v. City ofShreveport, 61 So. 2d 548 (La. App. 1952); Dilley v. City of Houston, 148 Tex.191, 222 S.W. 2d 992 (1949); 63 C.J.S., Munidpal Corporations § 746.'Russell v. Men of Devon, 2 Term Rep. 667, 100 Eng. Rep 359 K.B. 1788.'Although the courts have tenaciously held to the majority rule in principle, manydecisions have reduced the immunity so long enjoyed by municipalities by strainingto hold as a corporate function what might be expected to be governmental. SeeAnnor., 156 A.L.R. 693 (1954). There is no uniform holding among the states asto what is a corporate and what is a governmental function.'Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539 (1926); Hanley v. Fire-proof Bldg. Co., 107 Neb. 544, 186 N.W. 534 (1922). And see 63 CJ.S., Munid-pal Corporations § 782.5 Wehr v. Roland Park Co., 143 Md. 384, 122 At. 363 (1923). And see 25 AM.JJiL, Highways § 7."OHIO REV. CODE § 723.01. "Municipal corporations shall have... the care, super-19581WESTERN RESERVE LAW REVIEWThe owner or tenant of the adjoining property also finds himselfduty-bound by the presence of the sidewalk. In contrast to the city, theproperty owner is liable only if he has actively created or maintained adangerous condition on the public streets or sidewalks.7Consternation and confusion have been prevalent when the Ohiocourts speak of the municipality and property owner as being either pri-marily or secondarily liable. The use of these terms has brought aboutdecisions which seem to be the product of a mechanical application of aformula rather than the fruit of logic. In interpreting the Ohio statutethe supreme court has contradicted itself: it has held the municipalityprimarily liable on one occasion, and secondarily liable on another.9The inconsistencies become apparent in situations in which the munici-pality attempts to recover from the property owner the amount of dam-ages which it has already paid to an injured party. The problem becomeseven more complex when the injured party attempts to bring suit againstthe municipality after covenanting not to sue the property owner. Aproper solution to the problem can be effectuated by holding that theliability of the municipality is separate and distinct from that of theproperty owner. An analysis of the city's liability to the injured party,and the property owner's liability to either the injured party or the muni-cipality will help to clarify the picture.MUNICIPAL LIABILITYThe municipality's liability for failure to maintain its sidewalks "open,in repair, and free from nuisance" is primary and never secondary. It isincumbent upon one who attempts to hold another secondarily liable toshow facts which establish the existence of a primary liability in a thirdparty and a relationship wherein the latter party is responsible for thefailure to discharge the obligations which the primary party is unable todischarge.' 0 The negligence of a third party need not be proved. To re-cover against the municipality a claimant need prove only the existenceof a dangerous condition, that the municipality had notice of such condi-tion, and that the defective condition was the proximate cause of theinjuries.vision, and control of ... streets, avenues, alleys, sidewalks, and shall cause themto be kept open, in repair, and free from nuisance."' Globe Indemnity v. Schmitt, 142 Ohio St. 595, 53 N.E. 2d 790 (1944); Morris v.Woodburn, 57 Ohio St. 330, 48 N.E. 1097 (1897); Railroad Co. v. Morey, 47 OhioSt. 207, 24 N.E. 269 (1890).'Wilhelm v. Defiance, 58 Ohio St. 56 (1898); Sammins v. Wilhelm, 6 Ohio C.C.565 (1892).9 Hillyer v. City of East Cleveland, 155 Ohio St. 552, 99 N.E. 2d 772 (1951)."57 C.J.S., Master and Seriant § 614 (1944).[MachNOTESThe early line of Ohio cases recognized that the municipality incurreda "primary responsibility" to one who sustained an injury resulting fromdefective conditions. This responsibility was recognized by the legislaturein Revised Code § 2640. In construing the statute, the court"l deter-mined that the liability of the city to an injured party would exist eventhough the property owner might also be liable.OWNER'S LIABILITYThe adjoining property owner is liable only if he has actively createdor maintained a dangerous condition on the public streets or sidewalks.'2No common law duty rested upon the owner or occupant of premisesabutting on a public street to keep the sidewalks in repair. Consequent-ly, such an abutting owner was not liable for a defect in the sidewalk infront of his premises which he did not create or maintain.' 3 The munci-pality's right to recover against a property- owner for creating a defectivesidewalk is not derived by subrogation of the city to the rights of the in-jured person. The property owner has breached a duty, owed to the city,not to create or maintain a nuisance.' 4 In contrast to the liability to aninjured person, the tort against the city comes into existence immediatelyupon the creation of the defective condition and is not contingent uponthe occurrence of an injury to a member of the public for which the citymay have to answer in damages. The amount of damages recoverable bythe city would include the cost of repairs as well as the compensation forinjuries to the claimant. The municipality has the authority to repair thecondition immediately and recover the cost from the wrongdoer.It is apparent that while the liability of the city is founded uponnotice of the condition despite its origin, the property owner's liability isbased upon active participation. Although the property owner's dutymay be primary or secondary, the city's duty is always primary. A prop-erty owner may be liable to a member of the public or to the city forcreating or maintaining a dangerous condition in a sidewalk in situations'City of Zanesville v. Fannan, 53 Ohio St. 605, 42 N.E. 703 (1895). The courtstated that ". . . though the person who caused the nuisance may be also liable, andresponsible over to the corporation for whatever damages it is compelled to pay inconsequence of it, that does not affect the liability of the municipality to the partyinjured." (Syl. No. 1)'Maryland Casualty Co. v. Frederick Co., 142 Ohio St. 605, 53 N.X.2d 795 (1944);Hawver v. Whalen, 49 Ohio St. 69, 29 N.E. 1049 (1892); Clark v. Fry, 8 Ohio St.358 (1858).' Bolles v. Hilton & Paley, 119 Cal. App. 126, 6 P.2d 335 (1931); Wright v. Louis-ville & N.R. Co., 240 Ky. 73, 40 S.W. 2d 1003 (1931); McCarthy v. Adams, 42Ohio App. 455, 182 N.E. 324 (1932)."Bello v. City of Cleveland, 106 Ohio St. 94, 138 N.E. 526 (1922); Morris v.Woodburn, 57 Ohio St. 330, 48 N.E. 1097 (1897).19581WESTERN RESERVE LAW REVIEWin which the municipality would not be liable because of lack of noticeand opportunity to remove or repair the defective condition. On theother hand the municipality might be liable to a plaintiff for a defectivecondition for which the property owner would not be responsible be-cause he did not actively create the condition.' 5 Therefore it becomesapparent that the facts giving rise to a cause of action against a munici-pality and one against an adjoining property owner are not always the same.CONFUSION SPRINGING FROM SE=TLEMENTSIn Morris v. Woodburn,'( the courts abandoned the independence ofthe city's liability. The rule which propounded the continuation of pri-mary liability despite the property owner's settlement vanished. An in-jured party brought an action against the adjoining owner. Recoverywas permitted because the owner actively created the defective condition.In dictum, the court went on to say that "primary liability is upon himwho actively creates the nuisance." Much reliance was placed upon theNew York case of Rochester v. Campbell.'7 The court inferred that whenthe property owner was primarily liable, the city, of necessity, was sec-ondarily liable rather than the perpetrator of an independent wrong. Thisfallacy engendered no adverse effects in cases in which the action wasinstituted solely against the municipality for damages. However, wherethe claimant first made a compromise settlement with the property ownerand subsequently attempted to recover the remaining damages from themunicipality, the injustice of such erroneous reasoning became manifest.In Bello v. Cleveland'8 the claimant and the property owner settled apending suit for a portion of the damages and entered into a covenantnot to sue. The claimant did not expressly reserve his right to bring anaction against the municipality. The court denied recovery from the city,proceeding on the theory that the covenant not to sue could not be ofany value to the property owners unless it was also a complete release ofany claim against the city. It is possible to argue that an unconditionalsettlement with the property owner would impliedly release the city aswell. But no such implication can reasonably be drawn from the execu-tion of a covenant not to sue. Manifestly this was not the intent of theclaimant when he executed the instrument. Nevertheless the court main-mined that the municipality's right of action against the adjoining prop-erty owners was one of indemnity only. Justification for the decisionwas found by construing the compromise settlement contract in a mannerwhich was patently not in accord with the real intent of the parties.'City of Cleveland v. Hanson, 15 Ohio App. 409 (1921).'557 Ohio St. 330, 48 N.E. 1097 (1897).1123 N.Y. 405, 25 N.E. 937 (1890).'106 Ohio St 94, 138 N.E. 526 (1922).[MarchNOTESEven more inequitable decisions can be found where there has beenan express reservation of the right to proceed against the city in a com-promise settlement with the property owner. In Herron v. Youngs-town19  the agreement between the parties contained the clause"... . claimant does hereby remise, release, and forever discharge the lesseeof and from any and all actions, claims, and demands whatsoever whichclaimant now has or may hereafter have on account of or arising out ofthe accident. .. ." Despite an express reservation of the claimant's rightto proceed against the municipality, the court decided that settlement bythe claimant with the lessee absolved the city. The court construed theclause to mean that the claimant covenanted that no action would bebrought by the city against the lessees. The conclusion was based uponthe premise that the right of the city was based upon subrogation to theclaimant's cause of action. Further, since the claimant agreed to releaseall actions arising from the tort, the covenant then barred any right ofrecovery by the city against the property owner because the right ofsubrogation had been destroyed. The court determined that ultimateloss should not fall on the municipality on the theory that the city wasmerely secondarily liable. Hence claimant was not permitted to recoverdamages from the city. The case was subsequently followed and ap-proved2 0 Consequently, a substantial part of the inducement for theclaimant's settlement contract with the property owner was overlooked.The reservation of the claimant's right to proceed against the municipal-ity was rendered nugatory. The clear intent of the parties was thwarted.Words of condemnation could be found anachronistically in Adams Ex-press Co. v. Beckwith: "It is an odd species of legerdemain whereby acourt can destroy that reservation, that plain provision in the agreementof the parties."2'An application of the correct principles would avoid this difficulty.As previously stated, the liability of the municipality is not secondary. Aclaimant should be permitted to recover from the municipality under thefacts of the Herron and Hillyer cases independently of the city's chancesof recovery from the property owner. There is sufficient ground in Ohiofor so holding.22  The court is faced with the dilemma of attempting toreconcile the release from all actions arising out of the claimant's claimwith the reservation of the right of the claimant to proceed against thecity. The proper solution is to permit the city to recover against the136 Ohio St. 190, 24 N.E. 2d 708 (1940)."Hillyer v. City of East Cleveland, 155 Ohio St. 552, 99 N.E. 2d 772 (1951).100 Ohio St. 348, 126 N.E. 300 (1919).SYackee v. Village of Napoleon, 135 Ohio St. 344, 21 N.E. 2d 111 (1939); City ofCirdeville v. Sohn, 59 Ohio S. 285, 52 N.E. 788 (1898); City of Steubenville v.McGill, 41 Ohio S. 235 (1884).19581WESTERN RESERVE LAW REVIEWproperty owner because the latter has committed the tort of creating adefective condition. The claimant may thus recover from the munici-pality. The city may recover against the owner by showing that theowner has committed a tort against the city because the cause of actionis predicated upon a different concept. Despite the fact that the prop-erty owner has actively created the defective condition, he could have avalid defense thereto, such as proof that the city accepted a defectivelyconstructed sidewalk, or permitted public use for such a period as to im-ply acquiescence. 28Under this view the release and the covenant not to sue between theclaimant and the property owner would be given its intended effect. Theowner should not be permitted to purchase immunity for his tort againstthe city, especially since he is negotiating with the injured party and pur-porting to agree to the latter's reservation of a claim against the city.This approach would permit an injured party to receive full compensa-tion. Loss would ultimately fall on the property owner if the facts es-tablished that this was where it ought to be placed.The decisions reached in the Herron24 and Hillyer25 cases are unde-sirable from the standpoint of public policy. The city, by obtaining thisrelease from liability, acquires a windfall benefit under circumstances inwhich its responsibility is dear.CONCLUSIONThe municipality's statutory duty to remove or repair defective condi-tions in sidewalks is a primary duty, not a secondary one. The fact thata property owner may owe a duty to the city and also to other membersof the public should not be permitted to cloud the issue. An injuredparty should be entitied to recover against the municipality whether thelatter can recover against the property owner or not.Since the liability of a property owner and liability of the municipal-ity are based upon entirely different concepts, the injured party shouldbe allowed to recover against the municipality despite the making of acovenant not to sue with the property owner. If the property owner hascommitted the tort which results in damage to the city, then the city mayrecover damages from the property owner. This would adequately barthe property owner from purchasing immunity from the city while pur-portedly agreeing to permit suit against it. A full recovery to the injuredparty would be guaranteed by permitting suit to be brought against eachwrongdoer as the facts of each predicament present themselves.THOMAS J. McGuIRE'Wilhelm v. City of Defiance, 58 Ohio St. 56, 50 N.E. 18 (1898)." 136 Ohio St. 190, 24 N.E. 2d 708 (1940).'155 Ohio St. 552, 99 N.E.2d 772 (1951).(Match

Liability of a Municipality for Defective Sidewalks

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3737&amp;context=caselrev

Liability of a Municipality for Defective Sidewalks

Abstract

Similar works

Full text

Available Versions

Case Western Reserve University School of Law