Governmental Immunity and the Sidewalk Covering the Storm Drain
Exterior premises liability cases usually begin with the premise that the owner of the property abutting the sidewalk has primary responsibility for the sidewalk, while the municipality's liability is secondary.
November 09, 2018 at 02:54 PM
5 minute read
Exterior premises liability cases usually begin with the premise that the owner of the property abutting the sidewalk has primary responsibility for the sidewalk, while the municipality's liability is secondary. Storm drains are often installed underneath a portion of the sidewalk, but are maintained and inspected much more often by the municipality water department, which typically cleans and clears the drains on a yearly basis. Some drains are now also used by utility companies to run lines underground, adding to the wear and tear of the sidewalk stone above the drain. In addition to Stephen King's Pennywise, poor workmanship below can also cause erosion of the subsurface which can cause a depression in the asphalt.
If the water department sees a defective condition near the drain that they believe the property owner should be responsible for, the water department should issue a notice to the property owner. In most instances, however, the property owner is not provided with any information about either the municipality or the utility company using the drain, nor are they asked permission. The property owner is almost never notified of any maintenance, repairs or work performed on the storm drain in their adjacent sidewalk. Even if a property owner becomes aware of work being performed, there is often no mechanism by which the property owner can direct any of the work performed on the storm drain. Despite the property owner's powerlessness to control this particular portion of the sidewalk, the law still holds them primarily responsible.
Unfortunately, the language of the exceptions to the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. Section 8452, does not clearly protect the property owner in this situation. When a plaintiff trips and falls as a result of a defect on the sidewalk stone located above the storm drain, the property owner often finds themselves stuck in a legal quagmire under the act. The sidewalk stone above the storm drain is often considered to be part of the “sidewalk.” Of the eight exceptions, three could potentially apply to this situation. The real property exception (Section 8452(b)(3)(iv)) specifically carves out sidewalks as an exception. The sidewalks exception (Section 8452(b)(7)) mandates only secondary liability on the part of the municipality. The utility service facilities exception (Section 8452(b)(5)) applies to facilities of water, but the argument then becomes whether the sidewalk stone covering the storm drain is part of the water facility or the sidewalk for purposes of the exceptions. Hence the quagmire.
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