Towns Saved From Liability By Vague Law

New York Law Journal, May 17, 1999
Copyright 1999 New York Law Publishing Company

HEADLINE: Towns Saved From Liability By Vague Law

BYLINE: BY GARY SPENCER

An upstate appellate court found enough ambiguity in two common words last week to save municipalities from a sudden and unexpected reassumption of liability for icy sidewalks, a problem most of them long ago passed on to landowners. Local ordinances across the state make the owner of lands "abutting" a street responsible for clearing snow and ice from sidewalks "adjoining" the owner's lands.

While "abutting" and "adjoining" generally imply "touching," the Appellate Division, Third Department was confronted with proof that private property often stops short of sidewalks, which commonly lie within a public right-of-way.

Rather than apply a literal interpretation of the words, the court relied on the "obvious" legislative intent of the law. In a unanimous opinion by Justice Edward O. Spain, it held that "abutting" and "adjoining" land includes "property in close proximity to an improved sidewalk although separated from it by this type of municipal right-of-way." The novel issue in Pardi v. Barone (83653) was raised in defense against a routine slip and fall lawsuit in the City of Schenectady, when a pedestrian sued the homeowner living in front of the sidewalk where she was injured.

The defendants moved for summary judgment, relying on a survey which showed that a six-foot strip of city-owned land lay between the sidewalk and their property. The strip was part of the city right-of-way in which the street and sidewalk were located, and the defendants argued they had no duty to clear the sidewalk because their property neither abutted nor adjoined it.

Close Enough.

But the court found the statutory language was not so simple. "Although they are often in other contexts viewed as synonymous with touching," it said, "these terms are readily and genuinely susceptible of more than one meaning, i.e., they may be interpreted as requiring actual touching or as encompassing merely close, adjacent or proximate."

This ambiguity permitted the court to look to legislative intent, which it found to be "fairly evident and obvious." The city had sought to shift its common law duty for maintaining sidewalks to landowners as a means of promoting public safety "and of containing municipal costs and liability," it said. Based on evidence from the plaintiff's surveyor, the court said it is not uncommon for sidewalks to be separated from private lands by a strip of municipal right-of-way. "Such a strip of land is often invisible to observers... and the private property may appear to extend right up to the sidewalk," it said.

Justice Spain said the city must have been "fully aware" of the situation when it passed the ordinance and must have intended it to include "all of the many landowners" whose property does not quite reach the sidewalk.

"If not, the ordinance would establish a duty and liability only on landowners whose property actually touches the improved sidewalk itself," he wrote. "In our view, such a significant and arbitrary dichotomy was never intended by this ordinance."

The defendants were represented by Charles A. Bohl of Bohl, Della Rocca & Dorfman in Albany, and the plaintiffs by Gary P. Delisle of Bendall & Mednick in Schenectady.