Is a Sidewalk a Sidewalk?
As we transition to Fall and its promise of idyllic weather, I am reminded of the several unfortunate personal injury intakes I field where there is no ability to recover. Most, if not all, consults are properly shocked in response to hearing the dreaded phrase “political subdivision immunity.” Ohio residents should be aware that government provided services receive several protections. Instead of wading through a quagmire of a statute, I am going to focus on the most common area I see in my own practice: sidewalks.
Recently, I had to reject two prospective clients based on the general immunity provided to local governments in their maintenance of public sidewalks. Under R.C. 2744.01, political subdivisions are generally afforded immunity when a person trips and falls on a defect in a sidewalk. I do not recommend wading through all of R.C. 2744 for fun but its application can be fascinating. While a defect in a public sidewalk precludes recovery, there are several aspects to consider prior to wholesale pursuing or declining a case. One that comes to mind personally was a fight over whether a sidewalk was a sidewalk.
A few years ago, my client was on a public sidewalk where an exposed, broken water cap (“curb box”) caused him to trip, fall, and seriously injure himself. The accused city maintained that the water cap is part of the sidewalk. I maintained, as part of an exception to immunity, that the water cap was categorically separate from the maintenance of the sidewalk as it was a part of the water/sewer system. Unfortunately, as of the date of this post, there is no definitive answer on this issue and courts have gone either way. This is especially true with standard sewer covers and caps. It will not be a surprise that I submit the time is nigh to dispose of antiquated principles of sovereign immunity. However, it is currently alive and well. On the flip side, I suppose, it allows personal injury folk to maintain gainful employment since determining when a sidewalk is a sidewalk is trickier than one would think.