Liability Aspects of Pedestrian Facilities (2015)

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19 morning on a smooth patch of ice that had been covered by 1 to 2 inches of snow. The snow did not begin until around 11:30 p.m. Testimony estab- lished that the owner of the sidewalk consistently cleared it of snow and ice and kept it clear during business hours. The court granted a summary judgment motion against the plaintiff, based in part on the liability shifting mechanism in the ordinance. Lessons Learned: Liability shifting ordinances appear to be a viable cost-shifting solution. Ann Arbor, Michigan, amended its city code to relieve adjacent property owners from the obligation of sidewalk repair and removing snow and ice when the voters approved a property tax to fund side- walk maintenance. Similarly, states such as Con- necticut and South Dakota indicated that local agencies are required to maintain sidewalks in the state systems. 6. Storm in Progress Rule Many of the northern states simply cannot keep up with snow and ice removal during winter storms. Neither can adjacent property owners who have the responsibility of removing snow and ice from sidewalks. Because of the impossibility of keeping the roads and sidewalks reasonably safe during severe weather, states such as New York and Rhode Island have adopted a storm in pro- gress rule which simply states that there is no duty to remove snow and ice while a storm is in progress.73 Under the storm in progress rule as applied to sidewalks, an owner or party in control of real property is not responsible for accidents occurring on the property as a result of the accu- mulation of snow and/or ice until a reasonable period of time has passed after the end of the storm.74 A lull in the storm does not impose a duty on the owner or party in control of real property to remove the accumulation until the storm is en- tirely over.75 Additionally, there is no duty to warn of icy conditions during a storm in pro- gress.76 A Missouri court has noted that when a “general” condition of ice and snow exists, there is no duty to remove it, but if it is known that a par- ticular area of a sidewalk has a melting and re- 73 Grau v Taxter Park Assocs., 283 A.D. 2d 551, 724 N.Y S.2d 497 (2001). 74 Sfakianos v. Big Six Towers, Inc., 46 A.D. 3d 665, 846 N.Y.S.2d 584 (2007). 75 Dowden v. Long Is. R. R.,759 N.Y.S.2d 544 ( 2003). 76 Wheeler v Grande'Vie Senior Living Community, 819 N.Y.S.2d 188 (2006). freezing issue, that isolated area must be treated.77 E. Conclusion The successful defense of any case revolves around the facts of the case. In order to present a successful defense, counsel must be able to prove the actual condition of the alleged dangerous loca- tion at the time of the incident. This necessarily requires documentation of the scene and repair, if any. Photos of the scene should be taken as soon as the agency is alerted to the incident, using in- dustry accepted methods of measurement of slope and variance between sidewalk slabs. A recon- struction of the accident may need to be obtained. Statements from witnesses and/or employees should be taken and preserved. Documentation of the agency’s repair guidelines and guidance to staff on what conditions are acceptable should also be collected as soon as possible after the event, since all that evidence can (and frequently does) disappear. IV. ANALYSIS AND SUMMARY OF SURVEY DATA A. The Formal Survey A formal survey, conducted by Texas Transpor- tation Institute, was sent to 99 government agen- cies: All 50 states and 49 cities and counties. 78 77 Maxwell v. City of Hayti, 985 S.W.2d 920 (Mo. App. 1999). 78 The survey was sent to the following state De- partments of Transportation: Alabama, Alaska, Ari- zona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mis- sissippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Tennessee, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The survey was sent to the following cities and coun- ties: Atlanta, GA; Ann Arbor, MI; Apex, NC; Arlington County, VA; Benton City, WA; Berkeley Heights, NJ; Bernalillo County, NM; Boise, ID; Camden, SC; Chi- cago, IL; Colorado Springs, CO; Cook County, IL: Clark County, NV; District of Columbia ; Detroit, MI; Frank- lin Parrish, LA; Greer County, OK; Harris County, TX; Hartford County, CT; Helena, MT; Honolulu HI; Horse Creek, WY; Las Vegas, NV; Lawrence, KS; Little Rock, AR; Louisville, KY; Los Angeles, CA; Mason, OH; Mi- ami, FL; Minneapolis, MN; Nashville, TN; New York,

20 Responses were solicited in February 2014 and received in March 2014. A total of 44 responses were received.79 Some responses, such as the one from Los Angeles, California, were simply that they were not able to comment due to pending litigation. Other agencies, such as the city of San Diego, California, responded that they did not have the resources to compile the data requested in the survey. Of the 44 responses received, 41 were considered to be truly responsive to the sur- vey. It is those comments that make up the basis of the information conveyed throughout the body of this paper and that are discussed in-depth in this section. The research team purposefully directed the surveys to a cross section of small, medium, and large cities and counties, in both urban and rural settings. This was done so that multiple types of agencies could be studied. Responses from small rural counties such as Stone County, Missouri (population 32,202), and larger more metropolitan counties such as Arlington County, Virginia (population 207,627), were received. Responses were received from Washington, D.C. (population 601,723), Colorado Springs, Colorado (population 416,427), Papillion, Nebraska (population 18,894), and Benton City, Washington (population 2,388). Helena, Montana (population 28,190), provided a detailed response as did Little Rock, Arkansas (193,524). The authors believe the data collected is indicative of the both rural and metropolitan areas. Responses were received from 28 state De- NY; Papillion, NE; Philadelphia, PA; Pittsburgh, PA; Polk County, TN; Richardson, TX; Rochester, NY; Salt Lake City, UT; San Diego, CA; Savannah, GA; Scotts- dale, AZ, Sharon, MA; Sherwood, OR; Stone County, MO; Tacoma, WA; Vienna, VA; Watkinsville, GA; and Wentzville, MO. 79 Responses were received from the following states: Alabama, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Kansas, Maine, Maryland, Michigan, Mississippi, Missouri, Ne- braska, New Jersey, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Ver- mont, Washington, and Wyoming. Responses were received from the following cities and counties: Ann Arbor, MI; Arlington County, VA; Benton City, WA; Colorado Springs, CO; District of Co- lumbia; Helena, MT; Lawrence, KS; Little Rock, AR; Mason, OH; Papillion, NE; Savannah, GA; Scottsdale, AZ; Stone County, MO. Responses received from Los Angeles, CA; Chicago, IL; and San Diego, CA, were con- sidered unresponsive as they deferred responses to other agencies or simply did not provide responsive in- formation. partments of Transportation and 13 cities and counties. B. Common ADA Issues 1. Funding Almost every agency noted funding as an im- pediment to compliance with federal law relating to their pedestrian facilities. 2. Training After investigating complaints, several agen- cies found it necessary to conduct additional train- ing for their employees. For instance, Caltrans trained its construction inspectors on the neces- sity of placing temporary pedestrian accessible routes in its construction zones. Tennessee is now requiring additional training for staff and local agency partners to ensure ADA compliance during periods of construction. Several states indicated that they simply provided additional education to the public about accessible facilities in response to complaints. 3. Internal Guidance Arlington County, Virginia, Caltrans, and oth- ers developed new policies in response to com- plaints. Those changes included such items as adding Access Board guidelines for accessible rights-of-way to internal policies and developing new maintenance guidelines about snow removal. A number of responses indicated that changes were made to standard construction plans or de- sign plans. Those changes included reducing maximum slopes on sidewalks and doing more in- depth review and scoping of projects in the design phase. Oregon responded to a complaint by devel- oping a process to approve and document ADA design exceptions for “technically infeasible” and “undue financial burden” situations. The city of Scottsdale, Arizona, responded to a complaint by developing regular inspection and maintenance programs for sidewalks and multi-use paths and adopting a Complete Streets policy that includes requirements for all public and private street im- provements. 4. Transition Plan Development and Update The city of Scottsdale, Arizona, and Caltrans both developed multiyear programs to construct or reconstruct sidewalk ramps in response to com- plaints. Other states indicated that their transi- tion plans were reviewed and updated annually to ensure that their plans remained viable and re- sponsive to the needs of the community.

21 5. Compliance with ADA Many agencies, such as the New Jersey and Missouri DOTs, simply applied the current ADA regulations to resolve issues or complaints, to bring their facilities into compliance. Several states, such as Maryland and Tennessee, indi- cated that they were involved with bringing cities and other local agencies into compliance with ADA provisions and that they had developed new policies for sub-recipients of funding. Many states, such as Idaho, initiated a statewide project to ad- dress ADA issues. The city of Helena, Montana, received a com- plaint regarding unsafe routes of travel from a home to the central business district, which esca- lated from a local issue to an issue that was ad- dressed by FHWA. In response to that complaint, the city eventually entered into a settlement agreement that required it to create a new transi- tion plan, evaluate and inventory all curb ramps in the city, and create a map of the downtown area indicating the best routes of travel from ADA parking spaces and on the street. Additional steps involving access to a park and other public facili- ties are also under evaluation. 6. Resolution of ADA Complaints More than half of the agencies currently are or have been involved with some type of complaint by a disabled person. Almost all the complaints involved access to sidewalks—lack of curb cuts, steep slopes, sidewalks in disrepair—or access to facilities such as parks and buildings via side- walks. Some of the complaints seemed to be route specific, but the majority seemed to require sys- tematic improvements rather than spot improve- ments. All but two agencies were able to resolve the complaints or litigation without assistance from FHWA or a court order. 7. Project Civic Access Over the course of the Project Civic Access (PCA) project, the DOJ has visited more than 100 cities and counties around the country, with the intent of making sure that the cities are accessible for wheelchairs and people with other disabilities. An agency under review is advised to look at its facilities with the idea that the pedestrian trip begins where the vehicle trip ends. The top five most common ADA deficiencies reported in PCA reviews over the last three years include: signing within accessible parking areas; excessive slopes within accessible parking areas; handrail defi- ciencies; excessive slopes within accessible routes; and aisles within accessible parking areas. If an agency is found to have be noncompliant with PROWAG or other accessibility guidelines, fre- quently it will be required to enter into a settle- ment agreement with the DOJ which requires it to become ADA compliant by fixing accessibility issues and establishing a grievance process. Deficiencies in parking areas are by far the most commonly reported deficiencies. Within that category, problems with signing for accessible spaces and excessive slopes within accessible parking areas are the top two items reported in PCA reviews. The number of deficiencies reported on items in the parking area suggests there is a continuing need for agencies to focus more atten- tion on their parking areas. Having the correct number of accessible spaces in each lot with proper signing, striping and access aisles is criti- cal to having accessible communities. C. Resolution of Tort Claims A review of the data contained in Appendix G indicates that a large percentage (58 percent) of the reported tort verdicts and settlements in- volved either slip and fall or trip and fall claims. Many of those claims involved broken bones; how- ever, most did not involve very serious injuries or fatalities. On the other hand, the claims relating to inadequate or nonexistent crosswalks fre- quently involved fatal or very serious injuries. Reported verdicts and settlement exceeded $3 mil- lion, with several exceeding $15 million. However, there were several defendants’ verdicts reported. Inquiries about how many and what kinds of suits were filed against the agency provided 16 responses, which are analyzed below. Pennsylvania and New Jersey DOTs provided very detailed information in response to the sur- vey. Pennsylvania provided a synopsis of seven current cases and New Jersey provided a synopsis of fourteen pending cases. A review of their cases indicates trends that seem similar to those noted in the Verdicts and Settlements reporters and other reported cases found later in this section. Of the seven claims that Pennsylvania outlined, six were either trip and fall or slip and fall type cases. Their counsel indicated that two of the cases were essentially not defensible, as the agency knew about the defects in time to remedy them. Other cases were defended on a “lack of notice” defense and “open and obvious” defenses. One serious ac- cident was reported: the case involved a young child darting into traffic and an allegation of lack of appropriate pedestrian crossing markings. The agency intends to defend it with expert testimony