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.

An attorney representing the property owner will often have a client with little to no information as to when, where and how the defect in the sidewalk stone over the storm drain was created. While the law holds them responsible for the condition above, they have little to no power over, or even knowledge of, what actually goes on below. The attorney in this situation should pay attention to the municipalities' discovery responses. She should make sure she obtains all of the water department's maintenance and repair work orders for a particular storm drain surrounding the time of the incident involved in their case. She should notice the corporate designee with the most knowledge of maintenance and use of the specific drain in question, and, if possible, craft specific discovery requests to determine if any utilities or companies have obtained permits or easements to run lines under the drain. If other companies are using the drain, she should subpoena the company records and notice their designee deposition as well. Google Earth timeline photographs might even depict changes and the wear, tear and usage of the storm drain in question. Positive results should put the property owner in a better position to defend themselves, but it does not necessarily relieve them of their primary liability pursuant to the letter of the law.

All of this work, and several thousand dollars of defense costs, begs the question: why does the law still hold the property owner primarily responsible for a portion of the sidewalk that is known to be under the almost complete control of the municipality and possibly other companies? Would we be better served by a law that reflects the reality of the usage of this particular portion of the sidewalk? In New York City, for example, the abutting property owner is responsible for the sidewalk, but not the pedestrian ramps connected to the sidewalks. The pedestrian ramp is not considered to be part of the sidewalk under the law. While this may be due to a loophole in the definition of sidewalk under New York law, the fact remains that the property owner should not be held primarily liable under the law for portions of the sidewalk which are most often maintained, constructed, inspected and altered by the municipality, or companies to whom the municipality gives permission to utilize.

Given the fact the water department is routinely inspecting and maintaining the storm drains, as well as performing work on the drains, perhaps the best approach to this particular area of the sidewalk would be to carve it out as an exception to property owner liability. The law, and specifically the exceptions to governmental immunity, should clearly delineate and define the sidewalk stone above the storm drain as part of the water facility, thereby recognizing that it is primarily under the control of the municipality and not the property owner, so that our premises liability laws can more clearly mirror the reality of the storm drain usage.

Virginia King is a defense attorney at Goldberg, Miller & Rubin, in Philadelphia. She focuses her practice on insurance defense, including construction defects, premises liability and automobile negligence. Contact her at [email protected] or 215-735-3994.