Fix and Release: Los Angeles’s Sidewalk Repair Plan

By

Michael E. Rubinstein Esq.

Cracked, uneven sidewalks. Raised slabs of concrete that will destroy your balance and shatter your walking equilibrium in a split-second. We’ve all seen or encountered dangerous Los Angeles sidewalks. Many of us know someone who has tripped and gotten hurt, whether walking to shul, or to relatives’ homes for meals during Shabbos or yom tov.

Sidewalks

A solution to this long-overdue safety issue might be in the works. In March, the Los Angeles City Council announced a new plan to try and tackle the problem of Los Angeles sidewalks. Under the “fix and release” plan, the City will assume responsibility for repairing sidewalks, then transfer future repairs to adjacent property owners.

The plan is controversial, and critics have pointed out its flaws. According to a recent Bureau of Street Services report, approximately 4600 miles of Los Angeles sidewalks need repairs. Will the City’s fix and release plan make any progress? Isn’t the City responsible for maintaining sidewalks? And how did the City get into this mess in the first place?

Decades of Disrepair

Los Angeles’s notorious sidewalk problems stretch back decades.

During the 1970s, federal infrastructure funding became available, and the City voluntarily assumed responsibility for repairing all sidewalks. As a general rule, California law requires property owners to maintain the sidewalks that front their properties, but once federal funding became available, the City took on this responsibility. The federal funding was exhausted within a few years, and since then, the City has been slow to make proper repairs.

While typically a property owner is responsible for maintaining the sidewalk in front of his or her property, the Los Angeles Municipal Code contains an exception for sidewalk damage caused by city-owned trees and tree roots. Both the Code and several court decisions hold that if City-owned property (like trees) caused the damage, the City is responsible for repairing it.

In many trouble spots, the City will make a temporary repair by filling in uneven sidewalks with black asphalt. But these “repairs” usually are not permanent. What often happens is that the asphalt erodes, re-exposing the underlying dangerous portion of the sidewalk. Instead of permanently repairing dangerous areas, the City’s approach has been to simply put a “band-aid” that almost never completely eliminates the problem.

Class Action Lawsuit

The embarrassing state of Los Angeles’s sidewalks was litigated in a recent class-action lawsuit titled Willits v. City of Los Angeles. The case was brought by handicapped individuals who argued that hundreds of miles of Los Angeles sidewalks are not navigable for pedestrians, nor are they wheelchair compliant. Last year, the City settled the Willits case for over $1.3 billion. The Court ordered the City to spend $31 million annually over the next 30 years to repair sidewalks and make them more pedestrian-friendly and accommodating to individuals in wheel chairs.

The City has nearly 10,000 miles of sidewalks to begin with, and in the past 5 years, it has received over 19,000 sidewalk complaints. Despite the City’s settlement in the Willits case, progress has been slow. And the settlement is no consolation to the thousands of pedestrians who have tripped on dangerous sidewalks and suffered fractures, dislocations, surgeries, and the implantation of metal hardware in their joints and appendages as a result of serious trip-and-fall injuries.

Fix and Release

Under the fix and release plan, the City has agreed to repair sidewalks next to commercial, industrial, and residential properties throughout Los Angeles, regardless of what caused the damage. The plan will cap payments made for each parcel so larger plots do not disproportionately exhaust the allocation of funds.

The City will also offer rebates to property owners who undertake to repair their sidewalks on their own. The City can reimburse up to 50% of the repairs made by homeowners, and it will also waive permit fees for property owners who make repairs on their own.

The City will extend warranties for any sidewalk repair work it performs or authorizes as well. Residential sidewalks will be covered for 20 years, and sidewalks adjacent to commercial properties will be covered for five. The warranty would not cover damage or negligence caused by property owners. After the warranty period expires, private property owners would be responsible for making future repairs.

Some citizen groups have expressed concerns with the fix and release plan. They argue that the City’s trees are responsible for most of the sidewalk damage, and the fix and release plan should not shift the responsibility to homeowners who didn’t plant the trees and aren’t responsible for maintaining them. Furthermore, they argue, taxpayers should be able to expect the City to use their tax dollars to repair sidewalks, just like the City does for streets and other important municipal infrastructure.

Is the City Liable for Injuries?

Trip-and-falls on the sidewalk can result in gruesome injuries. It’s important to keep in mind that the City is not necessarily responsible in every case. Every case is unique, which is why an attorney should be consulted.

There is a considerable amount of case law that has analyzed defective sidewalks. The size of the defective sidewalk is an important factor, but by no means the only one the court will consider. Other factors include the pedestrian’s familiarity with the area; lighting conditions; and whether the City knew about the defect in question.

In trip-and-fall cases, the City might argue that it never knew about dangerous sidewalk areas. How can it keep track of thousands of miles of sidewalks that need repairs? In the law this issue is known as “notice.” It boils down to whether the City knew about the dangerous sidewalk. And even if the City did not receive any complaints, but a particularly dangerous area existed for such a period of time and was of such an obvious nature that the City, in the exercise of due care, should have discovered it, the law might impart what’s known as “constructive notice” on the City.

Pedestrians can report defective sidewalks to the City by using the 311 app, or by calling 311, or filing a complaint online. If you see a sidewalk that concerns you, it’s very important that you let the City know immediately! You could help prevent serious injuries and close the door on the City’s potential arguments that it never knew about a dangerous sidewalk. Once a citizen complains about a dangerous sidewalk, the City has an obligation to repair it.

In the event a pedestrian trips on the sidewalk and is hurt, an attorney should be consulted immediately. Claims against government entities have strict procedural rules that are different than regular claims. Failing to follow these unique procedures can be fatal to an otherwise valid personal injury claim. Don’t delay!

Conclusion

It’s too early to tell whether the fix and release plan will be a viable solution to the serious problem of Los Angeles sidewalks. One thing everyone can agree on is that the City has overlooked this safety hazard for far too long, and too many people have gotten hurt as a result.

Remember that trip and falls on the sidewalk involve a unique area of law known as premises liability. If you or someone you know is injured ch”v, you should discuss your case with an attorney familiar with this area of law as soon as possible.
The Gemara in Bava Kama (27b) says “Ein darkan shel b’nei adam l’hisbonen bidrachim – Pedestrians do not gaze at the ground while walking.” Despite what the City’s (and other defense-minded) lawyers might argue, it’s just not human nature for pedestrians to look down at the ground while walking on the sidewalk!