South Florida Injury Lawyers Blog
Responsibility for sidewalk maintenance depends on where the walkways is located and what the state and municipal ordinances say about who is responsible. Sometimes it can be private property owners located adjacent to the walk or homeowners associations or businesses on which the walkway exists. On public sidewalks, though, responsibility for maintenance usually rests with the county, city or town government.
If you suffer injury in an Orlando sidewalk trip-and-fall, your claim is likely to be against the City of Orlando, which is responsible for sidewalk grinding of sections that have become lifted, cracked or uneven. Although old English common law established the idea of governmental “sovereign immunity” from torts, F.S. 768.28 outlines the state’s waiver of sovereign immunity in tort actions, allowing it to be treated just like any other negligent party or vicariously liable employer. However, there are a number of exceptions, which is why it’s so important to work with an Orlando injury attorney with a track record of success in cases against government agencies. Ask for specific examples when you’re deciding which attorney to hire.
One of the exceptions outlined in the statute involves something called discretionary function immunity (the opposite of which is ministerial function, for which governments can be held liable). These are technical and complex legal concepts, but the easiest explanation is that ministerial duty applies to a public employee’s official duty, without room for the worker to exercise any discretion. On the other hand, discretionary function is that which involves a function of one’s public employee job that requires the individual to exercise some degree of judgment in carrying out the task.
Determining which duties are ministerial and which are discretionary isn’t always a simple matter in injury lawsuits.
Recently, the Illinois Supreme Court weighed a trip-and-fall injury lawsuit wherein plaintiff tripped and fell on a public sidewalk. She’d parked her car down the street, went to a store and was on her way back to her vehicle. It had rained earlier that day, and the low areas of the sidewalk had approximately an inch or so of water pooling. Plaintiff’s foot hit a piece of concrete, causing her to trip and fall forward onto the sidewalk, sustaining several serious and permanent injuries to her face, mouth, foot, shoulder and arm.
She filed a claim for damages against the city, alleging premises liability, allowing an unreasonably dangerous condition to exist and allowing the sidewalk to remain in dangerous condition despite having constructive knowledge that it was unsafe/ uneven/ worn. The public works director testifying during deposition testified that a project to inspect and repair downtown sidewalks started in 2011 and completed in 2012 (about nine months before this incident). The public works superintendent had done the initial walk-through, identified areas of concern and marked those spots with highlighter paint. The director then conducted his own walk-through, made the final decisions on which sections should be repaired, replaced or altogether removed. The director said such decisions were made on a case-by-case basis, considering the condition of each sidewalk slab. There wasn’t any written city policy that addressed these factors nor did policy stipulate deviations of a certain size necessitated replacement. When asked if he had considered the particular section of sidewalk on which plaintiff fell for repairs, the director said he believed so because every slab was analyzed.
The city then sought summary judgment, arguing firstly the danger of the sidewalk’s condition was open and obvious and further that it discretionary immunity applied. The court granted the motion solely on the discretionary immunity point, not considering the other arguments.
On appeal, the Illinois Supreme Court reversed. The court noted that while decisions that involve repair of public property can be discretionary, the government defendant seeking immunity has to show sufficient evidence that the city employee/ official made a conscious decision not to perform the repair. In this case, the court held, the city had not met this proof burden. There was no evidence presented that documented the decision not to repair this particular section of walkway. Further, the court stated it was not likely the legislature’s intention to apply discretionary immunity this way because by this reasoning, almost every failure to maintain public property could be described as an exercise of discretion.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Monson v. City of Danville, Aug. 2, 2018, Illinois Supreme Court
More Blog Entries:
Ex-Royal Caribbean Worker Wins $20.3M Verdict in Florida Injury Lawsuit, June 20, 2018, Orlando Premises Liability Attorney Blog