Maintain “Special Use” of Pedestrian Sidewalk in Reasonably Safe Condition

Even if you believe your municipality is responsible for maintaining the sidewalk outside your building, it's a good idea to keep the sidewalk in a reasonably safe condition for pedestrians and exercise “reasonable care” to guard them from injury. An injury on the sidewalk may give rise to a case that reveals you have more responsibility for maintaining what you considered to be a public space than you thought.

For example, in Aberdeen, S.D., 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 pedestrian appealed the lower court's decision 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 appeals court agreed with the pedestrian because the “special use doctrine”—under which 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—applied. 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.

An abutting owner who makes special use of a 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.” The abutting owner in this case would be liable to anyone injured as a direct result of his negligence.

• Locke v. Gellhaus, February 2010