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Municipal Liability for Un-owned Sidewalks

By David Morrison, Morrison Law Firm, LLC
The SC Court of Appeals ruled municipalities can be held liable for defects in un-owned sidewalks even when the “degree” of control over the sidewalk is limited. In Fickling v. City of Charleston, 372 S.C. 597, 602, 643 S.E.2d 110, 113 (Ct. App. 2007), the court addressed the issue of municipal liability for a sidewalk owned by the SC Department of Transportation but located within the city limits of Charleston. The court found that the city exercised “some degree of control” over the sidewalk so that summary disposition was inappropriate. The SC Supreme Court ruled in September 2006 in Vaughn v. Town of Lyman, 635 S.E.2d 631 (2006), a municipality could be held liable for an un-owned sidewalk if it exercised control over the sidewalk. Liability does not automatically follow ownership, and municipalities can be held liable for injuries caused by sidewalks owned by others.

Fickling carries the analysis to the next step. Charleston only made sidewalk repairs on DOT sidewalks after notifying DOT of the problem. When the state indicated it lacked funds to make the necessary repair or made no response at all, the city would make the necessary repair to the un-owned sidewalk. By doing this, the city attempted to avoid the presumption it volunteered for all un-owned sidewalk repairs. However, the Court of Appeals was unpersuaded. Despite the “limited” measure of control exercised by Charleston, the court ruled the city nonetheless exercised “some” control. The court emphasized the issue is whether the city exercised “any” control over the sidewalk. If so, the city may have a common law duty to maintain it.

The court also found a second basis for imposing liability. As in Vaughn, the court ruled Charleston voluntarily assumed a duty to repair sidewalks generally. Again, the city attempted to avoid a general assumption of a duty. The city admitted it maintained public sidewalks, but claimed it only did so when the city was on notice of a defect in the sidewalk or when the city created the defect itself. However, the court noted the city took calls for defective sidewalks and undertook repairs and maintenance. Further, the court noted the plaintiff presented evidence that the city should have known of the existence of the defect. The court noted: “Fickling presented evidence that the Charleston Police Department has foot patrols, horse patrols, and vehicle patrols on Meeting Street. Parking enforcement officers and sanitation workers also cover Meeting Street. A city fire department station is located about two and a half blocks from where Fickling fell.” Based upon the general assumption of a duty and the constructive notice, the court decided sufficient evidence existed to present the question of the voluntary assumption of a duty to the jury.

Following Vaughn and Fickling, municipalities can be held liable for defects for un-owned sidewalks within the city limits based upon exercising any degree of control over the sidewalk or based upon a voluntary assumption of a duty to repair and maintain. The City of Charleston’s “limited” control did not absolve it of a general duty to repair and maintain the sidewalk.