Liability Aspects of Pedestrian Facilities (2015)

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12 plaint. Caltrans reported that it developed addi- tional training for its construction inspectors as a result of complaints of lack of temporary pedes- trian access during the construction process. Changes were also made to snow removal prac- tices as a result of ADA complaints that Caltrans received. The city of Colorado Springs reported that it added curb cuts to some of its sidewalks to facilitate wheelchair access. Other agencies re- ported adding planned work to transition plans, adding parking spaces or striping to parking lots, adopting Complete Streets Policies, and taking other similar actions in response to ADA com- plaints. The city of Helena, Montana, reported that a complainant apparently concluded that the city’s response to the complaint was insufficient and involved FHWA after a response by the city to the complaint. FHWA staff negotiated a settlement agreement which required Helena to evaluate its current system and develop a complaint process and transition plan. In addition, the city upgraded the route that the complainant requested. Two state agencies, California and Pennsyl- vania, reported paying attorney’s fees in relation to ADA litigation. A detailed analysis of the re- sponses to the formal survey can be found in Sec- tion III of this paper and the full responses to the survey are found in Appendix F. J. Conclusion Compliance with the law by upgrading facili- ties at the time construction is done is the best defense to an ADA action, although an agency, in limited circumstances, can demonstrate an undue financial burden as a defense to a complaint or suit. The agency must bring its facilities into compliance with federal regulations in accord with its transition plan. The transition plan should be a “living document” that can be altered as the needs of the agency and community change. Additionally, adequate maintenance must occur on existing facilities so that they can be used by all members of the public. III. ANALYSIS OF TORT CLAIMS A. Tort Claims This section addresses tort claims arising out of the design, construction, operation, and mainte- nance of pedestrian facilities, including their in- teraction with streets and highways. Plaintiffs’ claims typically include slip and fall and trip and fall accidents. Claims may also be based on the improper location, installation, or signing of a crosswalk, or the complete failure to provide or upgrade the facility. Each of these types of cases is discussed in the sections below, with more analysis of the “failure to replace or rebuild” and “failure to provide facility” claims as they are non- traditional tort claims. To ensure current data, all state departments of transportation were surveyed on their experi- ences with tort litigation. A cross section of rural and urban cities and counties were also surveyed. Responses from 44 agencies were received. The data received was voluminous, so it is not repro- duced in its entirety in this paper. A summary of the survey results can be found in Appendix F and a more detailed analysis of the data received can be found in Section III. A media survey, with the purpose of locating jury verdicts and settlements, was also done. The results of that survey are noted below. Additionally, a study of the past 5 years of re- ported verdicts and settlements was conducted.43 A summary of those cases can be found in Appen- dix G. Eighty-three total verdicts and settlements were found in legal and traditional media. Of the verdicts, 19 were in favor of the plaintiff and 34 were in favor of the defendant. Due to the small amount of data involved, the inference that more defendants’ verdicts occur is not made by the au- thors. However, it is noted that many of the plain- tiffs’ verdicts are under $50,000, and many of the defendants’ verdicts involve serious injuries or death. A review of the data also shows that there were some very high plaintiffs’ verdicts and set- tlements, with several exceeding $10 million. A sampling of these cases is detailed below. B. Plaintiff’s Case After receiving the suit, the agency should evaluate the claim, considering the following fac- tors, since these factors are frequently considered by the courts: the height and width of any vari- ance between sidewalk slabs; the location of the defect or variance (i.e., whether it was near a resi- dential or commercial property or otherwise high volume area; whether the agency had actual or constructive notice of the defect; whether indi- viduals must use the sidewalk to get to the office of the agency); and the economic burden of repair- ing the area compared to the potential risk of harm. 43 Resources were the verdicts and settlements in the Westlaw and the Verdict Search databases, as well as newspaper articles.

13 The last factor suggests a cost-benefit analysis of the costs of any repairs and budgetary concerns or constraints compared to the potential danger to citizens and injuries that they may sustain if they were to trip and fall. The agency must decide whether to repair the allegedly defective area if it has not yet been addressed at the time of the suit. The agency should document the costs associated with the repair and other areas that are similar to the area alleged in the suit to be dangerous. If a choice is made not to repair, or a decision is made that the area at issue is not defective, it is impor- tant to note the reasons for the lack of repair in a document that can be located as the suit is de- fended. An agency may choose not to make repairs to a facility for any number of reasons. It is important to remember, however, that a sidewalk or other pedestrian facility can still be in a dangerous con- dition even if the agency can provide reasonable budgetary reasons and defenses for the failure to repair. A similar analysis to that noted above should be undertaken by the agency regarding all types of pedestrian claims. In response to the survey, the states of New Jersey and Pennsylvania provided detailed infor- mation relating to lawsuits that had been filed against them from the years 2009 through 2013. Pennsylvania indicated that 33 pedestrian related claims had been paid over the past 5 years. Those claims range from slip and fall type claims to lar- ger fatality claims alleging crosswalk inadequa- cies. New Jersey provided summaries of 14 claims that had been made against the agency. The types of claims ranged from slip and falls to catastro- phic injury claims. Only one of the reported claims was a slip and fall; the other claims were quite serious and most of them involved fatalities. While claims relating to pedestrian facilities are typically a small percentage of the total tort claims filed, they clearly have the potential for very high damages. The following case summaries were developed from formal survey results, re- views of reported jury verdicts and settlements, and reported legal opinions. 1. Slip and Fall and Trip and Fall These are the most common types of claims in- volving public entities and pedestrian facilities. Of the 83 pedestrian-related tort verdicts and set- tlements reported in the media, Westlaw and Ver- dict Search reports that 58 involved allegations of a trip and fall or slip and fall.44 Some of these claims were resolved by motions for summary judgment, but many times judges found that the question of whether a defect is trivial or whether a public entity had notice of a defect should be a question for the jury and should not be resolved without a jury. Most of the slip and fall and trip and fall cases noted herein were defended with an “open and obvious” defense. The reported plaintiffs’ verdicts were relatively modest and likely reduced by the fault of the plaintiff. Multiple courts and juries made the comment that government agencies were not insurers of the road and that all parties had the obligation to keep a careful lookout for hazards. For instance, in McClelland v. City of Shreve- port,45 Ms. McClelland was injured while walking on a cracked sidewalk at night. The sidewalk was owned and maintained by the city, but the city did not have a policy for inspecting the sidewalks. Representatives from the city testified that they relied on citizens to report problems with side- walks and relied on the “open and obvious” de- fense, as well as the defense that the crack was very minor. The court found that the city had con- structive notice of the defect and evenly divided the fault between the plaintiff and the city. Other cases such as Schoening v. David R. Ly- ons Revocable Trust, in which a jury awarded $725,000 to a woman who slipped on loose gravel on the sidewalk and broke her wrist and fractured discs in her back,46 and Jenkins v. City of Atlanta, in which the city settled the claim for $3 million after Jenkins, who was blind, repeatedly com- plained about a defective sidewalk and then in 2008 fell and was injured on it,47 are cause for concern and emphasize the need for safe side- walks. 2. Failure to Update Pedestrian Crossing Cases Cases involving the improper location, installa- tion, and signing of a pedestrian crossing or fail- ure to replace or rebuild an existing facility often involve very serious or fatal injuries. For obvious reasons, the governmental entity would like to 44 See Appendix G. 45 108 So. 3d. 810 (La. Ct. App. 2013). 46 Greg Bolt, Jurors Award $725,000 in Fall, THE REGISTER-GUARD, Sept. 5, 2013. 47 Available at http://www.myfoxatlanta.com/story/ 18441000/city-to-pay-3m-to-settle-lawsuit-over- sidewalk-accident#axzz2wnGVQLGS.

14 dispose of those cases using motions to dismiss or motions for summary judgment. The reasons those motions are granted are frequently specific to the law of the state where the tort occurred. Defenses such as sovereign immunity, compliance with industry standards, official and discretionary immunity, and the design defense may be helpful in disposing of some or all of the claims. • In the case of Nalbandyan v. City of Glen- dale,48 the city prevailed on a motion for summary judgment, using the design defense in response to a lawsuit that alleged the improper location of a sidewalk. Plaintiffs sued the city following their daughter’s death when she was struck by an automobile in a crosswalk on her way to school. The court found that the plaintiffs could not prove that the crosswalk, and safety measures and warning devices associated with it, were a dan- gerous condition of public property. The city was able to show that the crosswalk was designed and constructed in compliance with industry guide- lines and engineering standards and because of that, the court granted the city’s motion for sum- mary judgment. • A 4-year-old girl was killed in a Chicago in- tersection when she was struck by a vehicle in 2006. The operator faced criminal charges for leaving the scene of the fatal accident and died while in prison. Nevertheless, in 2012, the city of Chicago paid $3.25 million in settlement of the claim. The investigation by the city indicated that the crosswalk markings were faded (they had not been re-painted for 6 years) and the warning signs were not properly situated or in compliance with federal and local guidelines, so that parked cars blocked a driver’s view of the intersection and the warning signs. (See Estate of Maya Hirsch v. City of Chicago.49) • In the case of Bansen v. Booker and City of St Louis,50 a wheelchair-bound woman could not ma- neuver her wheelchair over a broken sidewalk in the city of St. Louis. As Ms. Bansen attempted to get home one evening in December 2005, she ma- neuvered her wheelchair on to Delmar Boulevard to avoid the sidewalk, and was struck by a vehi- cle. She died from her injuries. The driver testi- 48 No. B237953, 2012 WL 5332354 (Cal App. 2012). 49 City to Pay $3.25 Million in Traffic Death of Girl near Lincoln Park Zoo, CHICAGO TRIBUNE NEWS, July 23, 2012. 50 Heather Ratcliffe, Jury Faults City, Clears Driver in Death, ST. LOUIS POST DISPATCH, December 6, 2007, at Al. fied that he did not see Ms. Bansen and that a street light in the area was burned out. The city defended the case saying that the sidewalk was not impassable, that Ms. Bansen didn’t complain about the sidewalk in her 2 years of living in the area, and that it had already spent over $9 million installing wheelchair curb ramps with a priority on destinations such as hospitals and other high volume pedestrian locations. A 2007 jury awarded damages of $250,000 to Ms. Bansen’s family. The city’s testimony about upgrading of other facilities such as hospital and school accesses may have assisted them in keeping the damage award rela- tively low. • In Mohammed and Martin v. State of Mary- land,51 the state’s alleged failure to extend a side- walk “gap” resulted in a verdict of $3.3 million against the entity. The plaintiffs’ decedent died after being struck by a vehicle that veered into the shoulder where she was walking after exiting a bus at a bus stop. The plaintiff argued that there were sidewalks at both ends of the street where the accident occurred, and since the state failed to extend the sidewalk to include a sidewalk section, in between the other sidewalk sections where the accident occurred, it was negligent. • In the case of Ramirez v. Cities of Cypress and La Palma,52 the 16-year-old decedent was struck by a vehicle as she crossed the street in a marked crosswalk. A traffic signal was later in- stalled at this location. The two cities paid $1.1 million each in settlement of the case. The driver pled guilty to a speeding violation and vehicular manslaughter. • The trial of the case of Haworth v. City of Kent53 resulted in a defendant’s verdict. The plain- tiff was struck in a marked crosswalk as he walked his bicycle across the street, and suffered a head injury as a result of the accident. He claimed that there had been multiple similar ac- cidents at that location and that warning to mo- torists of the crosswalk was inadequate. The jury found that neither the city nor the driver involved in the incident were at fault. 51 Mohammed and Martin v. State of Maryland, 2011 WL 1527646 (Md. Cir. Ct.). 52 Rebecca Kheel, Cities to Pay $2.2 Million to Settle Lawsuit Filed in Girl’s Death, THE ORANGE COUNTY REGISTER, November 2, 2013 (available at http://www.ocregister.com/articles/palma-534001- cypress-edison.html, last visited September 25, 2014). 53 Scott Haworth v. City of Kent and Nataliya Kuz- mych, No. 08-2-24286-2 KNT), 2012 WL 2578700 (Wash. Super).

15 3. Failure to Provide Adequate Crossings Claims such as: the existing crossing should have been improved; refuge islands or pedestrian signals should have been installed; ambient light- ing should have been improved; or speeds should have been reduced in the crossing are discussed in this section. These are the most difficult types of cases to defend simply because they are so all- encompassing. A plaintiff may have comprehen- sive and seemingly endless lists of what could have been done to make the road reasonably safe, but if some of those items were not done, the plaintiff can argue that the road wasn’t safe at the time of the accident. • In Cathy Liu vs. Siebert,54 Cathy Liu, a young doctor, was struck by a car in an intersection that was marked by a crosswalk, but had no signals and was situated in the middle of an “S” curve. She suffered a serious brain injury as a result of the accident. The intersection accommodated 16,000 to 20,000 vehicles per day. The plaintiff’s evidence was that the city’s pedestrian safety standards recommended a high volume crosswalk such as this one have either a traffic signal or a pedestrian bridge. Additionally, the plaintiff al- leged that motorists’ views of the intersection were obstructed by vegetation. The jury awarded $18 million in damages, finding the city 51 per- cent at fault, the driver 39 percent at fault and the plaintiff 10 percent at fault. Fortunately for the city, the parties had entered into a high-low agreement prior to the conclusion of the trial, cap- ping damages at $6 million. The verdict was en- tered March 28, 2011. • Similarly, in 2010, in Emily Liou v. State of California,55 a jury awarded Emily Liou $12 mil- lion dollars after Liou was struck in an intersec- tion with a newly painted crosswalk that did not have traffic controls. The jury apportioned 50 per- cent fault to Caltrans, 30 percent to the driver, and 20 percent to Emily Liou. The plaintiff pre- sented evidence that the crosswalk was not well lit, that there were sight distance deficiencies due to the intersection being located at the crest of a hill, and that a signalized intersection in the dis- tance diverted the attention of drivers. People who lived and worked near the intersection testi- fied that it was dangerous and that they warned others not to use it. According to the plaintiff’s 54 Liu v. Siebert, verdict entered March 28, 2011. Cal. Super. Ct., Sacramento County, California. 55 No. CIV460659, 2010 WL 4111548, Cal. Super. Ct., San Mateo County, California. evidence, three pedestrians had been killed in the same crosswalk in the 15 years before Liou's acci- dent. The plaintiff also presented evidence that publications issued by FHWA and studies by Cal- trans indicated that marked crosswalks at uncon- trolled intersections could be more dangerous than unmarked crosswalks because pedestrians get a false sense of security when using a marked crosswalk. Additionally, the plaintiff presented evidence that Caltrans had not studied the pedes- trian accident rate on its highways. • A $90 million verdict in the case of Davis and Bradley v. Prince George’s County Board of Edu- cation56 in April 2013 was considered by the au- thors to be punitive in nature. The family of Ashley Davis, a freshman at Crossland High School in Temple Hills, Maryland, sued the Board of Education after her death in September 2009. According to court documents, the plaintiff al- leged that the school system did not provide a safe bus stop for students such as Davis and she was forced to take a bus that stopped on the other side of a busy street. She was struck in an intersection in front of the school bus that was waiting for her. Jurors heard testimony that parents in the school district had complained for years about the late school buses and about the unsafe routes that children had to walk to get to school. There was also testimony on an unpopular “cost-cutting” transportation policy that reduced the bus fleet by 130 buses, combined middle and high school stu- dents on some of the routes, consolidated drivers’ bus routes, and cut the number of school bus stops by 2,350. The policy, which was originally pro- jected to save the school system $10 million, also raised the maximum distance elementary school students walked to school from 1 to 11/2 miles. • In Salas v. California Department of Trans- portation,57 a pedestrian fatality case, the appel- late court affirmed the lower court’s grant of summary judgment in favor of Caltrans, finding that the intersection was not dangerous. In mak- ing its decision, the court reviewed photographs that showed clear visibility and no sight obstruc- tions at the intersection. • In Nguyen v. Le,58 the jury found a driver at fault in a pedestrian fatality accident, but not the city of Garden Grove. Decedent was struck and 56 Ovetta Wiggins, Jury Awards $90 Million in Prince George’s County Wrongful-Death Case, THE WASHINGTON POST, April 14, 2014. 57 198 Cal. App. 4th 1058 (Cal. App. 3d 2011). 58 2013 WL 6235143, Cal. Super. Ct., Orange County, California.

16 killed while he walked through a marked cross- walk. Allegations against the city were that inop- erative signal poles that had been installed were confusing to the defendant driver and motorists in general. The jury awarded $290,000 to the family of the decedent against the driver of the vehicle, which was reportedly reduced by comparative fault to $159,500. • A 6-year-old girl died as a result of an acci- dent in a city intersection in East Palo Alto, Cali- fornia, in September 2011. A settlement in the amount of $125,000 was made in April 2014 be- tween the family that witnessed the accident and the city. Decedent Siorelli Zamora was in a cross- walk at the time of her death. According to the Palo Alto Weekly,59 an 8-year-old boy had been struck in the same intersection 6 months prior to this accident. According to the news article, a city- commissioned report that had been issued the year prior to the accident recommended 15 mph school zones and crosswalk enhancements such as flashing beacons or in-roadway lights. Lessons Learned: Compliance with internal guidelines, such as the Manual on Uniform Traffic Control Devices (MUTCD) and other industry standards, is an important part of the defense of a tort claim. Not only must the agency comply with internal and external guidance, it must be able to clearly articulate the basis for its compliance with witnesses who are experts in their fields and documentation that supports the position of the agency. Conversely, if the agency cannot establish compliance with industry standards, the defense may suffer. Failure to comply with industry stan- dards may in fact be fatal to the defense. Documentation of the site of the accident or in- jury should be obtained as close in time to the in- cident as possible, as photos and videos of the area taken near in time to the accident in ques- tion may be the best evidence for the defense of the case. The documentation must be capable of standing up to close scrutiny and must accurately depict the scene. When a child or young person is struck and killed or sustains a serious injury in an accident in a pedestrian facility, the payout is likely to be very high, especially if the finder of fact believes the agency had notice of the alleged deficiency of the road. 59 Sue Dremann, Settlement Reached in Death of East Palo Alto Child; City Settles with Family for $125,000, PALO ALTO WEEKLY, April 14, 2014. If a plaintiff can demonstrate notice to the agency of the alleged problem, the value of the case increases significantly. Conversely, the agency is entitled to a reasonable time to react to and/or warn of a condition that needs to be ad- dressed. Juries may award money to a plaintiff simply to teach an agency a lesson. Davis and Bradley v. Prince George’s County Board of Education appears to be such a case. While it was a death case, testimony presented on behalf of the plain- tiff made the school district appear to be con- cerned only with cost-cutting measures and not the safety of the students. This evidence alone could explain the jury’s award of $90 million. The “open and obvious” defense is compelling and accepted by juries. Most of the trip and fall and slip and fall cases outlined in Appendix G were defended with that theory. The reported plaintiffs’ verdicts were relatively modest and likely reduced by the fault of the plaintiffs. Multi- ple courts made the comment that government agencies were not insurers of the road and that all parties had the obligation to keep a careful look- out for hazards. While a jury may be passionate about a case and award damages, the appellate courts are still “gatekeepers” of the law and many times sustain a lower court’s grant of summary judgment or mo- tion to dismiss, or will reduce damages that are clearly based on passion rather than the evidence presented by the parties. C. Issues of Compliance with ADA and Non- Delegable Duties Issues such as non-compliance with ADA and non-delegable duties may be present in tort cases, but are frequently questions for the jury rather than questions of law. 1. Compliance with ADA Sometimes the ramp and sidewalk configura- tion is not in compliance with applicable stan- dards, but the defect does not causally relate to the plaintiff's claim. (See Burns v. CLK Invs.,60 where a jury, in response to interrogatories on a special verdict form, found that the plaintiff tripped and fell on a handicapped ramp that was not built in conformance with ANSI [building code] standards.) The jury also found that the plaintiff’s fall was caused by a defect in the ramp, but also that the defect on which the plaintiff 60 45 So. 3d 1152 (La. App. 2010), rehearing denied, 2010 La. App. Lexis 1289.

17 tripped did not present an unreasonably danger- ous condition. Even if a plaintiff can prove an uneven side- walk surface, the condition of the sidewalk, if proven dangerous or out of compliance with guide- lines, must causally relate to the injury for the plaintiff to be successful in the suit. In Shifflette v. Missouri Department of Natural Resources (DNR),61 Ms. Shifflette sued DNR alleging that she injured her left shoulder when she tripped and fell while exiting their building. In her re- sponse to the DNR's motion for summary judg- ment, Ms. Shifflette did not dispute that she tripped in the hallway, that she did not know why she tripped or what she tripped on, and that the hallway was not physically defective or dangerous at the time of her fall. She contended, however, that the lack of a handrail on the doorway step caused her to fall after she tripped because she was unable to catch herself and prevent herself from falling. The appellate court, in reviewing the trial court’s grant of summary judgment to the state, specifically found that there was no factual basis to support a finding that Ms. Shifflette's in- jury was the natural and probable consequence of the lack of a handrail on the steps and affirmed the trial court’s ruling. If the plaintiff can prove a violation of the tech- nical guidelines of the ADA caused his or her in- jury, he or she has likely pled a prima facie case of negligence and the case will likely be allowed to proceed after a motion for summary judgment has been filed. Conversely, compliance with ADA technical guidelines such as PROWAG may be a viable defense to a trip and fall case and the basis for a successful motion for summary judgment. 2. Non-Delegable Duties Many governmental entities have a non- delegable duty to maintain reasonably safe facili- ties. Non-delegable duties arise when an entity has a duty (such as safety) that is so important that it cannot be discharged to other entities. This frequently means that the responsibility for main- taining a reasonably safe roadway or roadside cannot be delegated or contracted away. If a sidewalk is owned by the state, for in- stance, but the state has contracted with a city for the sidewalk’s maintenance, it may still be the state’s responsibility to keep the sidewalk rea- sonably safe. If the city is not performing its du- ties of maintenance properly, it may be guilty of a breach of contract, but the owner (the state) ulti- 61 308 S.W.3d 331 (Mo. App. 2010). mately may be responsible for the condition of its own property. However, the state Supreme Court in Paticucci v. City of Hill City,62 found that a sidewalk constructed by the state sixty years prior to an accident was the maintenance responsibility of Hill City since the city had entered into an agreement with the state for maintenance of it and exercised sufficient control over the sidewalk. Other states have also been relieved of the non- delegable duty doctrine through caselaw. Even when a governmental entity has a non- delegable duty to maintain its sidewalks, if a util- ity company or other entity takes on a repair of the property and does it negligently, the other entity may be held responsible for the repair or defense of the claim rather than the governmental entity. (See Benedict v. Northern Pipeline Co.63) D. Commonly Used Defenses to Plaintiff’s Causes of Action The following types of defenses to sidewalk claims were frequently noted in the formal survey responses and in the reported verdicts and set- tlements. 1. Compliance with Industry Standards Most state agencies have their own internal version of the Manual on Uniform Traffic Control Devices (MUTCD), or simply comply with the fed- eral MUTCD. Compliance with internal policy is a good start to a defense, although in many states, industry compliance is not necessarily a full de- fense to a lawsuit. FHWA and the United States Access Board reference several publications which detail the appropriate design of sidewalks, if and when that becomes a defense issue.64 2. De Minimis Defect In Chambers v. Village of Moreauville65, the court of appeal found that the city was not negli- gent or responsible for the plaintiff’s injuries due to a fall on a sidewalk with a 1½ inch deviation between sidewalk slabs when the evidence estab- lished that the sidewalk had been in that condi- tion for many years and had heavy foot traffic. Chambers is interesting because the appellate court specifically found that the trial court should have considered cost to the city as a factor in de- 62 836 N.W.2d 623 (S.D. 2013). 63 44 S.W.3d 410 (Mo. Banc 2001). 64 United States Department of Justice ADA website, http://www.ada.gov/2010ADAstandards_index.htm, site last visited April 27, 2014. 65 85 So. 3d 593 (La. 2012).

18 termining whether the sidewalk should have been repaired before the plaintiff’s accident. The court stated that the cost to the city to fix the deviation in question, as well as all the other (many) devia- tions that were similar to this one, was out of pro- portion to the gain in fixing the deviations be- cause the risk of someone being seriously injured by the defect was so slight. At the trial court level, the judge found the city to be 100 percent at fault. The appellate court found the city to be 90 percent at fault and the state Supreme Court found the plaintiff to be 100 percent at fault. Michigan enacted a law in 201266 that estab- lishes a presumption that a sidewalk slab differ- ential on a municipal street of less than 2 inches is reasonably safe. In North Carolina, the court in Strickland v. City of Raleigh,67 found that a 1-inch height differential was a trivial defect that did not need to be corrected. But the court in D’Ambrosio v. City of Phoenix68 found that the issue of whether the city had constructive notice of a ½ inch slab differential was for the jury to deter- mine, implicitly finding that even a small differ- ential could be a dangerous condition. Clearly, it is important to research the law of the jurisdiction where the cause of action accrued before determining an appropriate defense. 3. Open and Obvious In Ballog v. City of Chicago,69 the court found that an open and obvious defect of a sidewalk did not present a question for the jury when it consid- ered the city’s motion for summary judgment. The city argued that alleged defect was an open and obvious condition that did not give rise to a duty of care owed by the city to the plaintiff. The city further argued that the open and obvious condi- tion was not unreasonably dangerous; nor was it reasonable to require the city to anticipate that a pedestrian, in the exercise of ordinary care, would not have taken the precautions necessary to safely traverse the area. This defense is frequently used 66 MICHIGAN COMP. LAWS § 691.1402a (2014). In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) is presumed to have maintained the sidewalk in reasonable repair. This presumption may only be rebutted by evidence of facts showing that a proximate cause of the injury was one or both of the following: (a) A vertical discontinuity defect of 2 inches or more in the sidewalk. 67 693 S.E.2d 214 (Ct. App. 2010). 68 No. 1 CA-CV 10-0876, 20011 Ariz. App Unpub. Lexis 1438, 2011 WL 5866923. 69 980 N.E.2d 690 (Ill. App. 2012). in lack of crosswalk claims. It is not always rea- sonable for the government agency to anticipate pedestrian activity at a particular location. In fact, pedestrians tend to cross the street where they want to cross, avoiding crosswalks that are as close as 10 to 20 yards away in order to save a few steps in crossing the street. As noted in the reviews of jury verdicts, the “open and obvious” defense is readily accepted by juries. 4. Lack of Notice In Micky v. City of New York,70 the plaintiff prevailed when he presented evidence that a document produced by the Big Apple Pothole and Sidewalk Protection Committee noted a sidewalk defect in the area where he fell, and that the city had notice of the defect and was responsible for his injuries. Even though the city argued that the Big Apple Pothole document did not show the spe- cific location of the defect and that it did not have actual knowledge of the defect, the jury and ap- pellate court held the city responsible for the in- jury. In other jurisdictions, lack of notice is an absolute defense to a claim such as this. 5. Liability Shifting Ordinances As the name implies, a liability shifting ordi- nance or statute is intended to shift the risk and responsibility for repair and maintenance of a sidewalk from a governmental entity to a private property owner. Of the entities that responded to the survey (that can be found in Appendix F), 13 agencies reported that they had enacted liability shifting ordinances or that there were state laws that related to the repair of sidewalks and/or snow and ice removal on sidewalks. Only Wash- ington State reported that its ordinance had been successfully challenged and invalidated by the courts. Alexander v. City of Meadeville71 involves a li- ability shifting ordinance. The ordinance required property owners within the city to maintain their sidewalks in a reasonably safe condition, which included keeping them clear of snow and ice ac- cumulations. The ordinance had the following language: “Snow and ice shall be removed from all sidewalks within the city…on the same day that a fall of snow, freezing rain ceases or within the first five hours of daylight after the cessation of any such fall, whichever period is longer.”72 The plaintiff apparently slipped and fell in the early 70 96 A.D. 3d 679 (N.Y. App. Div. 2012). 71 61 A.3d 218 (Pa. Super. 2012). 72 Meadville, Pa, Ordinance 2903 § 745.10(c).