According to an American Law Report, it is generally the rule that the owner or occupant of a property touching a public sidewalk does not, solely by reason of being the owner, owe to the public a duty to keep the sidewalk in safe condition. This rule of nonliability is not affected by a statute or ordinance requiring an abutter to construct or maintain an adjoining sidewalk, unless there is an express, contrary provision.
However, the abutter will be liable for injuries resulting from a defective or dangerous condition that is created by his or her own acts, which constitutes negligence or a nuisance under the circumstances. For example, an abutter may be liable for injuries resulting from negligent construction, alteration, or repair of the sidewalk, even though these acts in and of themselves do not create liability.
The courts have usually considered compliance with the requirements of a statute regulating the construction of sidewalks. In a number of cases, knowledge or notice of the defect is a factor for liability, although the courts in many other cases have not treated this issue, given the fact that knowledge or notice of a defect on a sidewalk, as well as its direct cause, is difficult to ascertain.
Louisiana falls into this majority, with cases such as Legg v. Palozzola, in which one who knowingly constructed a dangerous sidewalk was liable, as well as Youngblood v. Newspaper Production Co. and Lee v. Baton Rouge, in which abutters were liable when they were the cause of a defect in or obstruction on the sidewalk.
Again, in a 2012 case, Benson v. Women’s Aglow Fellowship, the Court of Appeals affirmed a summary judgment dismissing injury claims. After parking to attend a service at an adjacent church building, the plaintiff unloaded at a curb in from of the defendant’s home. When the plaintiff later approached the car, she did not trip, but rather stepped into a depression in the cement curb and turned her ankle.
The City owned and was responsible for the curb. Photographs indicated that the curb is slanted and that a small pipe, which is recessed into an expansion joint, runs underground from the defendant’s property to the curb. There was no presence of water, and the plaintiff testified that the depression was covered with direct and grass at the time.
The defendants argued that the pipe was there when they bought the property and that they had nothing to do with its installation, nor the maintenance of or defect in the curb. The court applied the common-law rule by citing Butkiewicz v. Evans, in which the burden for tort liability resulting from a defect in a public sidewalk is placed with the municipality, not the landowner. Louisiana case law held true to the majority rule, as Schully v. Hughes held that a property owner is generally not responsible for repair or maintenance, except where they cause the defect in the sidewalk.
Given the defendants’ denial, the plaintiff was required to present evidence that they did in fact cause the defect in the curb. Although the injured woman’s husband entered the scene immediately after she fell and took pictures the following day, there is nothing to suggest that an essential element of their claim could be established at trial. There is no issue of material fact and summary judgment was granted.
Summary judgment is appropriate when there is no dispute as to a material fact, and where there is no factual support for one or more of the essential elements of the claim. Therefore, because the claimant did not provide evidence to show she could meet the burden of proof at trial, specifically that the property owners caused the chip in the curb, there is no genuine issue of material fact and the claims are dismissed.
If you have been involved in a similar situation and need legal help to bring justice to the situation, contact the Berniard Law Firm at (504) 527-6225 where a qualified attorney will help walk you through your case.