Monday, February 10, 2014

Court of Appeals Has Ruled that Indianapolis Ordinance Cannot Require Property Owners to Clear Public Sidewalks of Snow and Ice

This year, more than any other the issue has come up regarding Indianapolis' ordinance requiring that property owners clean the sidewalk in front of their business or residence or face a fine?   Complaints have mounted about the ordinance not being enforced.  Channel 13 just did a story on the failure to enforce the ordinance:
13 WTHR Indianapolis

I started thinking more about the legality of the sidewalk ordinance.  First, a sidewalk is always: 1) in the road right-of-way; or 2) a public easement on the owner's property  Regarding the former, there definitely would not be a duty of the property owner to clear the sidewalk as that is not even the owner's property. Regarding the latter, the property owner wouldn't be responsible for an "act of God" created by snow or even  third party pushing snow up onto a sidewalk while plowing the streets.  The prohibition is only on the property owner interfering with the use of the easement, not third parties or God.

It turns out that the Court of Appeals agrees.  In 2002, in the case of Lawson v. Lafayette Home Hospital, Inc., 760 NE 2d 1126, 1129 (Ind. App. 2002), the Court of Appeals stated:
It is well settled in Indiana that an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets and sidewalks of ice and snow. Hirschauer v. C & E Shoe Jobbers, Inc., 436 N.E.2d 107, 110-11 (Ind.Ct.App. 1982) (citations omitted). Additionally, municipal ordinances that require abutting owners or occupiers to remove snow and ice from public sidewalks do not, as a matter of law, create a duty under which an owner or occupier can be held liable to third party pedestrians. Carroll v. Jobe, 638 N.E.2d 467, 471 (Ind.Ct.App.1994), trans. denied; Hirschauer, 436 N.E.2d at 111 (citations omitted)....
In 2007, the Court of Appeals dealt directly with Indianapolis sidewalk snow remvoal ordinance.  In that case, Denison Parking, Inc. v. Davis, 861 NE 2d 1276, 120 (Ind. App. 2007), the Court of Appeals again said a municipality cannot use an ordinance to impose on a property owner a duty to clear a sidewalk from ice and snow.  Channel 6 covered the story back in 2007.

The reason Indianapolis is not enforcing the sidewalk snow removal ordinance is that the City can't.


Vickie said...

I understand that if I DO attempt to clean the easement and someone was injured, I could be held responsible BUT if I did nothing to clean the walkway, then any mishap would be considered an Act of God and therefore I could NOT be help responsible. Am I wrong?

Unigov said...

The citations are obtuse. Better to start with the fact that requiring adjacent owners/lessors to clean sidewalks is a violation of constitutional rights:

"Article 1, Section 21. No person's particular services shall be demanded, without just compensation. "

Commanding me to shovel the city's sidewalk is akin to slavery.

Likewise, commanding me to perform a fire inspection for an office I rent.

Steve said...

Just because you can't be prosecuted for not clearing a sidewalk doesn't mean that it can't be a moral obligation.

Paul K. Ogden said...

Vickie, there is a principle in common law negligence which says that if you undertake a task you were not obligated to do, and you do that task negligently, then, yes, you can be held liable. It probably wouldn't happen, but it could.

IfIwerequeen said...

Then, can the City force you to clear the drainage ditch that runs through your yard or mow the grass on the other side of sidewalk?
I was warned once we started to mow grass on the OTHER side of a street that ran past my garage (not an alley, it was/is an actual street)that if we stopped mowing it, we'd be cited for high weeds. This was technically DPW levee along Big Eagle Creek.

Betty Barcode said...

A few of us in Buffalo, NY are following this ruling with great interest. Our neighbor city of Rochester has had municipal sidewalk plowing for over a century. They contract it out to private bidders who meet their specs. We'd like to implement it here.

We've noticed that nowhere else in municipal management are private citizens fined for failing to maintain public property.

If streets are plowed at public expense, I argue that the moral obligation to clear sidewalks also falls to government. Or we could treat our streets the way we treat our sidewalks and fine ourselves for failing to shovel them out, too.

This is an equal access, equal protection issue.