Saturday, February 28, 2015

Indianapolis City Officials Again Repeat Phony Threat of Fines for Not Clearing Sidewalks of Snow, Ice

Like clockwork, every winter a story appears in the local media where an official from Indianapolis Code Enforcement threatens business and homeowners with fines for not clearing public sidewalks of snow and ice.  Even though such a duty was specifically rejected by the Indiana Court of Appeals in 2002 and the Indianapolis law specifically held to be invalid in 2007, that has not prevented city
Photo from IndyGov website instructing
people how they want City's sidewalks cleared
officials from annually repeating the lie that people face fines.    It's one thing to ask people to clear the public sidewalks. It's quite another to issue phony threats as to what consequences they face for failing to do so.

This year it was Fox59 that repeated the City's lie in a piece given the headline "Shovel your sidewalk after the weekend snow, or face a fine."  Uh, no.

Here's what I wrote last winter.
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. 
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.
By continuing to issue phony threats to the public, officials are opening up Indianapolis to a class action lawsuit to recover the cost of the labor for all those who worked to clear the public sidewalks falsely believing they were required to do so.  Another possibility is individual lawsuits from property owners who might have heart attacks or get injured while clearing the sidewalks falsely believing they were obligated by law to do so.

Note:  The City's website even contains the phony claim that property owners have a duty to clear the ice.  See also here.


Pete Boggs said...

Many who live in the city, clear sidewalks only to have them plowed under by the city doing its job of street clearing. For the same reason we shouldn't manufacture indignation about the city's need to clear the streets; the city shouldn't feign concern about low fruit inconveniences like snow covered sidewalks.

Why not just ask as a courtesy rather than threaten?

Greg Bowes said...

I do not agree with your analysis, Paul. The court cases you cite say the ordinance imposes no duty on an abutting property owner to clear a public sidewalk that benefits pedestrians. This means the pedestrian cannot successfully sue the property owner who does not clear the sidewalk. These cases do not say the ordinances are invalid and cannot be enforced by the city and fine the adjacent property owner for non-compliance. Probably one reason these ordinances have not been upheld or ruled invalid is because there is very little enforcement, and therefore no chance to take a case to an appeal. I think the ordinances are still valid.

Paul K. Ogden said...

Greg, the Court of Appeals in the 2007 case could have said the Indianapolis ordinance that the duty under the ordinance to clear a sidewalk of snow and ice did not create a duty of the property owner to the pedestrians who might be traversing the sidewalk. Instead the Court of Appeals said in a more general fashion that the Indy ordinance does not create a duty to clear a sidewalk of snow and ice. Maybe they were sloppy in their language. I personally highly doubt from the 2002 and 2007 cases, that fines relating to ordinance would be upheld. Of course, given the prohibitive cost of such an appeal, I don't think we're going to see a direct appeal of a case involving those fines anytime soon.

But there is another major legal problem with the ordinance. Can the city, via an ordinance, force residents and business owners leaving near the canal to spend time keeping it clean? What about making the residents living next to the Monon pick up trash on the trail? Or what about residents living on major city streets being held responsible for keeping it clear of snow and ice?

In each of these examples, the answer would surely be "no," i.e. the city cannot force people to provide unpaid labor for the public's benefit. Sidewalks are no different than the canal, the Monon or major city streets. Regardless of whether sidewalks are constructed via an easement or constructed on public property, they are the responsibility of the public, i.e. government not the property owners. Government can't force people to provide free labor for the public's benefit.