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Bayville may shift liability for sidewalk injuries, repairs to property owners

Bayville's current code on sidewalks only requires residential

Bayville's current code on sidewalks only requires residential and commercial property owners to keep sidewalks clear and clean. Credit: Newsday / J. Conrad Williams Jr.

Bayville property owners would be legally liable for injuries occurring on their sidewalks, rather than the municipality, under a proposed amendment to the village code to be considered Monday.

Under current code, residential and commercial property owners are required to keep sidewalks clear and clean, but the proposed amendment would also require them to maintain sidewalks in a “reasonably safe condition.” This would include replacing or repairing defective slabs.

Under the proposal, the owner, lessee or occupant of a property abutting any sidewalk would be held “liable for any injury to property or personal injury, including death, proximately caused by the failure … to maintain such a sidewalk in a reasonably safe condition.”

“From an insurance perspective it makes a lot of sense to keep the village out of that liability,” said Deputy Mayor David Wright. If adopted, the change would affect a relatively small number of properties because most streets in the village don’t have sidewalks, he added.

Wright said the village isn’t facing a rash of slip-and-fall lawsuits and is instead considering the change after conversations with its municipal insurance broker, Syosset-based Salerno Brokerage Corp.

In 1996, the New York Court of Appeals upheld a Long Beach ordinance that shifted liability from the city to property owners abutting public sidewalks. That decision, in Hausser v. Giunta, opened the door for municipalities to pass similar ordinances. Oyster Bay Town and Farmingdale also shift liability to the property owner.

“It’s very difficult for injured people to collect against a municipality,” said Randy Schwartz, a personal injury attorney from Massapequa Park.

Schwartz said that to win a settlement against a municipality, the injured person must show that the municipality either had written notice about the sidewalk defect or had created it.

But most private property owners have insurance, which makes a settlement easier, he said.

“The insurance company is going to look and say, ‘Here’s a person with a legitimate injury, here’s a defect in the property, the law requires that the homeowner is responsible’ and it’s easy for the injured party to collect,” Schwartz said.

Ellen Melchionni, president of the New York Insurance Association Inc., an Albany-based trade group, said in a statement that government should focus on ending "frivolous lawsuits" rather than shifting liability. 

"Municipalities shifting liability to property owners or occupants is not the best solution," Melchionni said. "While there may be insurance to provide coverage, an increase in claims will only result in an increase in the cost of insurance — a hidden tax on residents."

The proposed amendment would also stiffen penalties imposed on property owners who don’t clear and maintain their sidewalks. Violations for failure to clear sidewalks of snow, ice or other encumbrances carry a $250 fine. The proposed amendment would also fine property owners $250 for every week they fail to comply with a written order to repair or replace defective sidewalk slabs within a specified time limit.

WALK THIS WAY, CAREFULLY

A proposed code change would affect commercial and residential property owners in Bayville:

  • Owner, lessee, occupant of property abutting sidewalk responsible to maintain sidewalk in a “reasonably safe condition.”
  • Liability for any personal injury or property damage caused by failure to maintain sidewalk would fall on owner, lessee or occupant, not the village.
  • Failure to comply with a written order to repair or replace defective sidewalk slabs incurs a weekly $250 fine.

Source: Bayville proposed local law C-2019

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