WHITEBOARD WEDNESDAY (July 26, 2017): San Francisco sidewalks are notoriously worn, broken and dangerous. We regularly hear from people that have been injured after tripping and falling on them. In this week’s #WhiteboardWednesday, we address property owner responsibility for the condition of the sidewalk in front of their property and give some insight on these claims to those that have fallen and been injured.



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Video Transcription

Hi, Matt Quinlan here. Welcome to this week’s edition of #WhiteboardWednesday, where we tackle real-life issues that are our clients face and answer questions that we get from people that call our office. This week, we’re gonna be talking about dangerous sidewalks, in particular, in San Francisco where people are injured after they trip and fall over them. There’s been some recent changes in kind of the way these things are handled as it relates to the city’s responsibility or the property owner’s responsibility. And we’ve been handling these types of cases for years now, and so we wanted to do a Whiteboard Wednesday to explain to both property owners what they’re responsible for, and then give some information to people that have been injured in trip and falls about their sources of potential recovery.

Worker’s Compensation May Not Be Your Only Source of Recovery


So let’s get started. First things first, a little history about…the responsibility for these sidewalk defects. Street trees, the trees that are kind of…within the sidewalk, are really the primary reason why these sidewalks get buckled up. I’m sure you’ve seen them all over San Francisco, and I would say that 80 or 90% of all defective sidewalks are the result of roots that have grown up underneath it and forced up the various parts of the sidewalk. There are about 125,000 street trees in San Francisco, okay? And in the past, property owners have been responsible for any damage that these trees do. The general rule is, a property owner is responsible for the sidewalk in front of their property all the way up into the curb, okay?

And if there’s a street tree present in that area between both your house and the curb, then you are responsible for maintaining that tree, you’re responsible for fixing the sidewalk if the roots were to butt up a portion of it. Unless there was a particular tree that this city had claimed responsibility for as a city-maintained tree. And in the past, there was about 40,000 city-maintained trees of all the San Francisco street trees, and the rest of them were the responsibility of the property owner. Now, recently you may recall in November of last year 2016, there was a Prop, Prop E on the ballot that transferred the responsibility of maintaining the street trees from the property owner to the city and county of San Francisco.

And, we all voted as residents of San Francisco, and 80% of the people voted to transfer that responsibility from the property owner to the city and county of San Francisco. I did not vote for that, because I know that can make things a bit more difficult for my clients and for me in my line of work. But nonetheless, the people wanted the city to be responsible for sidewalks that were damaged by street trees, and that took effect on July 1st. So just you know, this month, the beginning of this month, the full transfer took place. Now San Francisco did send out some notices to property owners saying, “Hey look, this hasn’t quite taken effect yet. You have a sidewalk in front of your house that has been damaged by tree roots from a street tree, and you’re responsible for getting it fixed. You’re also gonna be responsible if someone were to become injured by tripping over this area of the sidewalk, and liability will be on you, not us.”

So if you did get one of those things, obviously you’re gonna be responsible for this particular area of the sidewalk until you get fixed. If you did not receive anything like that from the city, then it is gonna be their responsibility to take care of everything including any liability for injuries that happened as a result of tripping, which takes us to the current responsibilities that you have, okay? Again, you are still responsible for making sure the sidewalk in front of your house is safe in that hazardous, dangerous condition.

All the way to the curb, you’re covered in terms of your responsibility, except for these roots that I have mentioned, assuming you didn’t get a letter from the city and county of San Francisco, and public utility boxes. If there’s a public utility box out in front of your place, and for some reason there’s been a collapse or some sort of you know, area in the sidewalk, where there’s been some damage or something like that, then the city and county will be responsible for that. But you as a property owner are still responsible for your sidewalk, assuming it’s been damaged for reasons other than tree roots and public utility boxes, okay? So that could include drainage, if there’s drainage problems, sometimes there’s collapses. You’re gonna be on the hook for drainage. Just general wear and tear, some of that sidewalks are old, if they’re crumbling or something like that from weather or just a lot of use, then you’re gonna be responsible for that.

And then lastly, maybe there’s a construction project. Maybe your home had some work done to it. Maybe you hired somebody to come out and fix it, and there’s been a collapse or something along those lines. You’re gonna be responsible for that one too. So keep an eye on your sidewalks, make sure they’re safe. If you find that you know, your sidewalk is assuming like it might be in a dangerous condition, put out some signs, all right? Put out a cone, and definitely get it fixed as soon as possible.

If for some reason I’ll tell you though that if someone does trip and fall, and you get a letter from someone like me, a personal injury lawyer who handles trip and injury fall cases, here in San Francisco, your home owner’s insurance will cover you for that, all right? So that’s the type of thing that you can just turn the claim over to your insurance company, and they’ll handle it. They’ll deal with the lawyer and any sort of legal responsibility you might have for the injuries, homeowners’ insurance will cover it. So it’s nothing to stress majorly about, but I’m sure your homeowners’ associate…or sorry, your homeowners’ insurance company would appreciate it if you would let them know and get that fixed.

Trip and Fall Injury Claims


As it relates to the people that have actually tripped and fallen over a dangerous area of a sidewalk, it is not a strict liability situation, all right? It’s a sidewalk in a city. So I mean, it’s understood it’s not gonna be perfect, and nobody’s gonna be expected to keep their sidewalk in a perfect condition. So there is a negligence standard that must be met. You have to show that the sidewalk was in a hazardous or dangerous condition, all right? And it’s not some trivial defect, all right? That’s a buzzword, you want the hazard if you fell. Trivial defect has been defined as something less than a half an inch, all right? So if the sidewalk is up a bit, then this little gap right here in terms of the difference in height, needs to be more than a half an inch for you to have a legitimate claim for a trip and fall injury due to the negligence of either the property owner or the city and county of San Francisco.

Now, what I’ve got drawn here is basically, there’s a fine line between being high enough to hold somebody responsible for your injuries, and being so high that you also bear some fault in it. A condition like that is called an open and obvious one. I mean you can’t just not watch where you’re going and run into a fire hydrant for example, that would be on you. All the same if the sidewalk, you know was butted up a foot or something like that, and you were to run into it. Now you’re gonna be able to blame either the property owner or the city and county of San Francisco for having the sidewalk in such a state, but you’re also gonna be having to accept some fault on your own, some comparative fault for not watching where you’re going, all right?

So you know, what exactly that area is, I don’t know. You know in my mind, once a gap is about this big, maybe three or four inches, you’re gonna be expected to see it and not trip over it. And I personally feel that the sweet spot is somewhere right about one inch in terms of the difference in height between the various layers of the sidewalk where you tripped. And in this area here, or thereabouts, you’re gonna be able to establish liability, you’re gonna be able to show that the sidewalk is in a dangerous condition, and it’s not gonna be so open and obvious that you’re gonna have some comparative fault.

So if you have fallen, the first thing you should be asking yourself is, “Why was this sidewalk dangerous? What was the cause of the defect?” And there’s really just two options, all right? It’s either tree roots from the street trees, or public utility. And, if it’s a tree root or public utility, then the defendant in the case and the responsible party is the city and county of San Francisco. And you have a six-month statute of limitations to bring a government claim, all right, if you fall over a sidewalk that’s been damaged by the street tree roots, or the public utilities. So that happens really quickly, so stay on top of that. You definitely are gonna wanna talk to a lawyer, okay? Trip and fall cases are tough, and lawyers don’t love trip and fall cases, I sure don’t. But I handle them, as long as things as handled properly, as long as there’s a legitimate claim, and long as I’m able to communicate with my client early in the process.

And part of that obviously involves the six-month statute. If you come to my office or give me a call six months or later after you have fallen, and the city and county ultimately ends up being responsible for it, you’re out of luck and I can’t help you. Now, if the reason why the sidewalk is dangerous is a reason other than the tree roots of a street tree, or a public utility box, anything else, then the property owner’s responsible. And this is where you wanna be, okay? There’s a two-year statute of limitations for starters, but let me just tell you. I mean trying to recover from a person’s homeowner’s insurance for something like this, is so much easier than bringing a government claim against the city and county of San Francisco. This is the city budget that they pay settlements out of, it has to be approved by the board of supervisors. If ultimately you have to try a case against the city and county of San Francisco, you’re gonna be trying the case in front of a jury of your peers that are San Francisco residents that aren’t going to be real keen on sticking it to the city, all right? And costing the city a lot of money, taking money from their budget, putting it into your pocket, they’d rather see it go elsewhere.

So, history has told us that residents of San Francisco don’t get carried away when the city is the defendant, except for egregious circumstances. And for that reason, if you have a choice, if I had a choice, I would always prefer a property owner and a private insurance company. So this would be certainly your goal. Now, a few tips before we conclude here. If you have fallen and injured yourself on a dangerous sidewalk, take photos. I mean, this is probably the most important thing, all right? You wanna take photographs of the area that you fell over. And you’re gonna wanna do it with something that gives you a reference about how big the raised area was. If you have a ruler, great. I don’t know why you’d have a ruler, but you can use your hand, you can use something in your purse right, that you can produce later and show how big it is. There’s lots of thing you can do to give us some context, so make sure you don’t just step up and take a picture of it because it could be repaired in the meantime between the time you fell, and the time your lawyer ends up going out there and taking a look at it. And then it’s gone and it’s hard to establish how big the gap was.

And again, as we’ve mentioned earlier, it’s important the height of the difference. So take a photograph, use something for context. Mention something to your doctor, all right? Trip and falls are tough in part because oftentimes, there’s no witnesses and people, you can’t prove that it happened, right? There’s no evidence left behind of you falling there, so mention that to your doctors. If you get picked up by an ambulance, obviously you’re gonna mention it to them. But if you go home, and maybe you go to the doctor the next day, make sure you tell them, “I tripped on the sidewalk on Webster Street, or wherever it was,” so it ends up in your medical records, all right?

All these little things help your personal injury lawyer put together your claim. And you don’t want anybody telling you that you can’t prove that you fell, all right? It’s your burden to prove, as the plaintiff, you have to show that it’s more likely than not that it happened the way you said it did. And if there’s no witnesses and no proof, and you know, you can’t even necessarily establish that it happened as opposed to if you fell somewhere else, then you’re gonna be finding yourself in a difficult position to try to recover. So talk to your doctors, talk about it as much as you can. And the more proof you can get in writing about the fact that you fell on the sidewalk, the better. And then lastly, no statements, all right? Don’t do this, these statements…let me put a couple of those on there because it’s important. Don’t give statements to anybody, all right, without talking to an attorney first.

I mean, I don’t allow my clients to give statements to people. But sometimes, people will get contacted by the insurance company, or they’ll reach out to the city or the property owner before they contact a lawyer, and invariably, they’re gonna be asked to give a statement, they’re gonna give one. And they always say something that I wish they wouldn’t have. So don’t give statements to people, call a lawyer, right. This is what we do. Now even if you can’t find a lawyer to take on your case, at least you can get some free advice about what you should be doing as it relates to your injuries from your trip and fall over a dangerous sidewalk.

So there you have it, I’m glad I was able to present this to you. It’s an important issue in San Francisco, and like I said, it’s kind of a hot topic right now. If you have fallen and been injured on a dangerous sidewalk, of course in San Francisco, I’m happy to answer any questions you have. I’m also happy to answer any questions you have about any of this other stuff. I appreciate you watching, and I look forward to seeing you again next week at Whiteboard Wednesday.

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