Who Is Liable For A Sidewalk Defect, The City Or The Owner

Attorney Answer

Usually the city — but not always. In some California cities a local ordinance shifts liability for a defective sidewalk onto the owner of the property in front of it, so the honest answer is that you need to claim against both while you find out which.

Start with the statute, because it is the one most often misread. Cal. Sts. & High. Code § 5610 requires owners of lots fronting on a public street to maintain the sidewalk so that it will not endanger persons or property. People read that and conclude the neighbor is liable. That is not what it does on its own: the duty it creates runs to the city, and under California's sidewalk cases an abutting owner is generally not answerable to an injured pedestrian merely because the sidewalk in front of the property was broken. Where the owner created the hazard, that is a different matter.

The important exception is local. In Jordan v. City of Sacramento, 148 Cal. App. 4th 1487 (2007), the Court of Appeal addressed a city ordinance that shifted civil liability for defective sidewalks to the abutting property owner, and held the shift effective — with the city entitled to indemnity from the owner if the city were held liable. So whether the property owner is on the hook where you fell depends on the ordinance of your particular city. That is a question a local attorney can answer quickly and you cannot answer from the sidewalk.

Tree roots cut both ways. If the tree is a city street tree in the parkway, that points at the city. If it stands on private property, it points at the owner. Either way the same practical answer follows: present a claim to the city and identify the abutting owner now, rather than choosing between them later.

And the deadline is the real risk. Cal. Gov't Code § 911.2(a) requires a claim for death or for injury to a person or to personal property against a public entity to be presented not later than six months after the cause of action accrues. Six months, not the two years Cal. Code Civ. Proc. § 335.1 gives for a claim against a private owner. Cal. Gov't Code § 945.4 requires that claim to be presented before suit, and under Cal. Gov't Code § 945.6(a) a further short deadline runs after the entity responds.

One more thing. You will be told you should have watched where you were going. In California that is an argument about how much, not whether — applying Cal. Civ. Code § 1714(a), the Supreme Court in Daly v. General Motors Corp., 20 Cal. 3d 725 (1978), described a pure comparative system in which a plaintiff's recovery is reduced only to the extent his own lack of reasonable care contributed to his injury.

What you can do

1. Photograph the sidewalk now, before it is repaired: the lift, the roots, the tree, and the height of the difference measured against a coin or a ruler. Note the date and the nearest street address.

2. Ask the city for its claim form and present a written claim. Cal. Gov't Code § 911.2(a) gives six months from accrual, and filing with the agency costs nothing.

3. Request from the city, in writing, any prior complaints, service requests, inspection records or repair orders for that stretch of sidewalk and that tree.

4. See a doctor about the injury that kept you off your feet, tell them how it happened, and keep the records, bills and any proof of missed work.

5. Ask a local attorney whether your city has an ordinance of the kind described in Jordan, and who owns the property and the tree.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Cal. Gov't Code § 911.2(a) governs the claim against the city: six months from accrual to present it. A claim against a private abutting owner runs on Cal. Code Civ. Proc. § 335.1's two years instead. Which one applies turns on who is responsible, which is the very thing still to be worked out — so treat the six months as your deadline and have a local attorney check the dates now.