Spokane faces legal liability when sidewalk cracks result in injury, but a fix can be slow

Two years ago, Maryann Bouttu was visiting Spokane to see a production of the “Wicked” musical when she tripped and fell on a downtown sidewalk, reportedly suffering significant injuries.

She sued Diamond Parking, which owned the deteriorated sidewalk. But she also sued the city of Spokane. In March, the city settled its portion of the lawsuit, awarding Bouttu $100,000.

Sidewalks – though a public asset – are, by law, primarily the responsibility of the adjacent property owner. This is typical across the country. Those property owners are required to shovel sidewalks after it snows and repair them when they are cracked or otherwise damaged.

But when deteriorating sidewalks cause an injury, the city can, in many instances, be sued along with the property owner.

City law notes that if a property owner fails to repair a sidewalk, the city can do the repairs and bill the property owner for that expense. However, there are numerous challenges that can make it impractical for the city to fix all hazardous sidewalks, city officials note – the first being simply knowing about a problem when it occurs.

“We do our best to maintain streets and sidewalks, but we also depend on neighbors to notify us of things like icy streets and potholes, because we cannot know every flaw in every street at every moment,” city spokeswoman Erin Hut wrote in an email.

The vast majority of issues are only identified after someone calls 311 to make a complaint, said Luis Garcia, director of city code enforcement. At some point, an employee from code enforcement will go to inspect the issue, and if it’s confirmed, will send a notice to the property owner and to the occupant of the address, which are often different people.

Sometimes repairs are simple, just requiring the sidewalk to be ground down, and sometimes another city department needs to come in to respond to an underlying issue, such as the roots of a street tree causing the concrete to buckle.

If a property owner responds to the initial notice and gets a permit for repairs, code enforcement hands off the issue to the city’s development services department. If there’s no response, code enforcement will send another notice and eventually forward the issue to the city prosecutor to send out yet a third notice, after which legal action may be taken.

Even then, there are multiple barriers to forcing the hand of a property owner, Garcia noted, including a reluctance to fine someone for an issue that doesn’t pose an imminent safety risk.

“It’s not a good public policy to punish your way into compliance,” he said. “We try to take an educational approach to it, because a lot of people don’t know what their responsibility is, including the occupants.”

Depending on a lease agreement, an owner may have transferred responsibility for maintaining sidewalks to a tenant, for instance, Garcia added.

If a complaint is ignored and the city has plans to do major work in the area anyway, such as on the street, repairing a broken sidewalk can get wrapped into other construction. But it’s prohibitively costly for the city to send out a team just to repair a lone buckled sidewalk panel, Garcia said.

“The cost is of a scale that, yes, it wouldn’t be reasonable to expect the government to go and resolve everybody’s sidewalk issues, which is why the statute points to the adjacent property owner,” he said. “It’s not something where funds are adequate enough.”

A better way is elusive, said Councilwoman Kitty Klitzke. The funding mechanisms the city can access are grossly insufficient to address the problem, she noted.

On the campaign trail last year, busted sidewalks were one of the most frequent issues residents raised with Klitzke when she knocked on their doors. The funding mechanisms the city can access are grossly insufficient to address the problem, she noted, and when residents learn that they are legally required to bear the cost of repairing a broken sidewalk, they often are in no better a position to pay for it than the city would be.

Klitzke serves on the state’s Active Transportation Council, which had discussed an effort to lobby for legislation to fully shift the responsibility and cost of maintaining sidewalks to cities.

“That sounds like a great idea, except you’d bankrupt Eastern Washington,” Klitzke said. “Some of these jurisdictions on the West Side have newer, younger infrastructure and much higher property values, so they’re easily able to raise much more money.”

She argues that the best solution for a city like Spokane would be to create a new, separate utility charge that would specifically pay for sidewalks and couldn’t be raided for other purposes, like for an elected leader’s pet project or when the city is facing a broader budget deficit, as it is currently.

However, Klitzke notes that there could be immense legal hurdles to doing so, and to her knowledge it hasn’t been attempted by other jurisdictions in the state. The city likely couldn’t enact one without enabling legislation from Olympia, either.

But Klitzke believes it may be a fight worth having.

“The system isn’t working,” Klitzke said. “It’s a crazy system.”