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Sidewalk cracks are all too common. Everyone has seen them. Some have tripped over them and been seriously injured. When that happens, the question becomes who is liable for those injuries?

Liability is not automatic. A person injured in a trip and fall must usually establish the person responsible for the sidewalk had actual or constructive notice of the dangerous condition. Actual notice can be difficult to prove, so many of these cases rely on constructive notice, Constructive notice is normally established by showing the crack or defect existed for a long period of time. When the defect existed for a long time, it is presumed that the person with responsibility should have known about it and taken action to correct it.

Not every sidewalk defect creates liability. One case confirmed an uneven section of sidewalk created by a poor job of installation is not defective for liability because it was reasonably safe for walking. Sidewalks are not inherently dangerous, so an injured person must prove more than a fall on the sidewalk.

In many trip and fall cases, the defendant claims that the defect was open and obvious and therefore should have been avoided by the injured party. Courts have confirmed that the open and obvious nature of a defect may eliminate the duty to warn, but does not relieve the person with liability of duty to maintain safe premises. A good example is the case of Lotto v. Point East Two Condominium Corporation, Inc.

In Lotto, a condominium resident tripped and fell on a crack and partially uneven sidewalk. The condominium association admitted the sidewalk had been in that condition for over 3 years, but argued it had no duty to warn the resident because the condition is obvious. The trial court agreed and granted judgment in favor of the condominium association. The injured resident appealed.

The appellate court agreed the association did not owe a duty to warn the resident of the condition. The court disagreed on liability. It ruled that obviousness of the condition did not relieve the association of the duty to repair. The association clearly knew about the defect because it had placed blue dots on the sidewalk purportedly to mark areas that needed repair. Despite putting blue dots the association did not repair the sidewalk. The case was sent back to the trial court for further proceeding.

Trip and fall cases are not limited to proving negligence of the person responsible for maintaining a safe sidewalk. The injured person's negligence is also a factor. If the injured person was negligent (i.e. not looking where they were walking) the doctrine of comparative negligence comes into play. Under comparative negligence, the negligence of each party is compared and assigned a percentage of responsibility for the injuries. The injured person's recovery is then reduced by the percentage his or her own negligence contributed.

Liability for sidewalks on private property generally rests with the owner and/or occupant of the property, but that is not necessarily the case with respect to sidewalks on public property. Under common law, a city is responsible for upkeep and maintenance of public right of ways and sidewalks. Once a governmental entity builds or takes control of a sidewalk, it has the same duty as a private person to maintain and operate the property.

In most cities, as in Marco Island, sidewalks rest in public right of way and are not on privately owned land. That may make homeowners comfortable that they have no liability for the condition of the sidewalk in front of their property. Many cities, including Marco Island, have other ideas. Marco Island adopted an ordinance that requires the owner of the property abutting a sidewalk is required to construct and maintain the sidewalk. Not only is the owner required to construct and maintain, but is also mandated to inspect the sidewalk to keep it in a safe condition. Abutting property owners are also required to maintain the sidewalk and driveway apron free of overgrowth and encroachments.

Marco Island, is not content to merely mandate an abutting property owner take care of the sidewalk. Another ordinance provides that any person injured due to failure to properly construct and maintain the sidewalk may bring a civil action against the adjacent or abutting property owner, or the occupant or agent of such property according to the percentage that such person's negligence or failure to comply with the ordinance contributed to any alleged injuries or damages. The ordinance goes on to state that the city may assert as a defense the damage is caused by the adjacent or abutting property owner, occupant or agent's failure to comply with the ordinance thereby reducing the city's liability in whole or in part. Florida courts have confirmed that such ordinances make the abutting property owner liable for injuries on a city's sidewalk.

Liability for someone tripping on a city owned sidewalk in front of someone's home would not necessarily be an insured event under Florida hazard or windstorm property insurance policies. For that reason, homeowners should not only make sure that the sidewalk in front of their property is in good condition, but also that they carry sufficient liability insurance "just in case." Issues of negligence, comparative negligence and causation are factors in most trip and fall cases. Absent liability insurance for the adjacent property owner, the owner may find pointing the finger and blaming the city is not sufficient to escape liability. Even though the sidewalk may be owned by the city, the abutting property owner in many cities is a potential defendant if anyone trips and falls.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.