City and Owner Share Maintenance Duty for "Special Use" of Sidewalk

Facts: A pedestrian was injured when he fell through a concrete-filled metal grate in a public sidewalk. The grate covered a defunct stairwell to the basement of a building on the property abutting the sidewalk. The stairwell had been reconstructed with the grate by the abutting property's owner in 1968 in accordance with city specifications. Before the reconstruction, it had been installed solely for the abutting owner's convenience.

The pedestrian sued the abutting owner for negligence. The abutting owner asked the court for a judgment in its favor without a trial, arguing that because the 1968 reconstruction had been completed in accordance with city specifications, the city was liable to the pedestrian. The court ruled in favor of the abutting owner, concluding that, because the sidewalk had been rebuilt by the abutting owner pursuant to the city's demands, the city, rather than the abutting owner, owed a duty of care to pedestrians using the sidewalk. The pedestrian appealed.

Decision: The appeals court reversed the lower court's ruling.

Reasoning: The issue in the case was whether a city, an owner of property abutting a city sidewalk, or both owe a duty of care to pedestrians for the maintenance of a grate in a sidewalk covering a stairwell that had been previously made for the benefit of the abutting owner—when the city had mandated and directed the reconstruction of the stairwell using the grate.

The appeals court noted that an owner of property that abuts a public sidewalk owes a duty to pedestrians only when he creates or maintains an excavation, such as the stairwell in this case, or other artificial condition under the sidewalk that causes or contributes to an injury. This generally is known as the “special use doctrine.” Under the special use doctrine, an abutting owner could be held liable if an injured pedestrian showed that the sidewalk was constructed in a special manner for the abutting owner's benefit. Here, the abutting owner's stairwell specifically had been constructed for his benefit to allow him to use the sidewalk in a manner different from that of the general public, making it a special use of the sidewalk.

The appeals court stated that an abutting owner who makes special use of the sidewalk owes a duty to maintain it in a “reasonably safe condition for pedestrians lawfully using it, and must exercise reasonable care to guard the public from injury.” An abutting owner who does not do so becomes liable to anyone injured as a direct result of his negligence.

The appeals court stressed than an abutting owner's liability for negligence is not affected by the fact that the city where the property is located has a duty to perform and may also be liable for injuries. The appeals court agreed with the abutting owner here that, as a result of the 1968 reconstruction of the stairwell with the grate, the city also owed a duty of care to pedestrians with respect to the grate because it had expressly mandated it. However, the imposition of the duty on the city didn't extinguish concurrent duties the abutting owner owed for his creation or maintenance of the stairwell. In other words, the abutting owner's duty of care resulting from his special use of the sidewalk was not erased simply because the city also was liable. Since the abutting owner's duty with respect to special uses is concurrent with, not secondary to, any duties that may also be owed by the city, the court ruled that the abutting owner here was liable to the pedestrian for his injuries.

• Locke v. Gellhaus, February 2010