Public sidewalk cracks and irregularities may be more than just an eyesore for adjacent property owners. In certain municipalities, individual property owners may now have a duty to maintain their surrounding sidewalks in a safe condition.

In a recent case, Gonzales v. City of San Jose, an Appellate Court upheld the constitutionality of a San Jose ordinance which provides that owners of property abutting city-owned sidewalks may be liable to third persons who are injured as a result of unsafe sidewalk conditions. In that case, plaintiff Joanne Gonzales, was injured when she tripped and fell over a rise in the public sidewalk in front of Charles Huang’s commercial building. Gonzales sued the property owner, Huang, on the theory that Huang had a common law duty to maintain the sidewalk as well as a statutory duty to maintain safe sidewalks as imposed under San Jose Municipal Code section 14.16.2205, which provides that property owners may be liable for poorly maintained public sidewalks abutting their property.

While the trial court held that the San Jose Municipal Code section was pre-empted by state law, the Appellate Court disagreed and reversed the trial court’s grant of summary judgment. Using the criteria established by the California Supreme Court in Sherwin Williams Co. v. City of Los Angeles, the Appellate Court held that the municipal statute did not duplicate, contradict or enter an area fully occupied by general law and as a result was not pre-empted by state law. As such, the Appellate Court ruled that, pursuant to San Jose Municipal Code section 14.16.2205 (and in municipalities with similar statutes), a private landowner could be found liable for injuries that occur on adjacent public property.

The Appellate Court’s rather troubling decision in Gonzales provides potential liability to private landowners if they fail to maintain the public sidewalks adjacent to their property. Stated differently, private property owners in certain municipalities now face a potential increase in liability for conditions that do not even occur on their own property. As a result, such property owners may now be required to monitor public property adjacent to their own or potentially be liable for injuries that occur on that property.

About the Authors: Edward F. Morrison and Larry A. Schwartz are partners in the Los Angeles office of Lewis Brisbois Bisgaard and Smith, LLP.