BETH A. MADDEN, Plaintiff,
CITY OF IOWA CITY, Appellee, and STATE OF IOWA, Appellant
Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill, Judge. The State of Iowa seeks interlocutory review of a district court order permitting the City of Iowa City's cross-claim against the State.
Thomas J. Miller, Attorney General, Anne E. Updegraff and Tyler M. Smith, Assistant Attorneys General, for appellant.
Eric R. Goers, Assistant City Attorney, Iowa City, for appellee.
APPEL, Justice. All justices concur except Waterman and Mansfield, JJ., who dissent.
A bicyclist was riding on the sidewalk abutting the grounds of the University of Iowa in Iowa City when she fell, sustaining an injury. The bicyclist filed a negligence action against the City for failure to maintain the sidewalk in a safe condition. The City moved to add the State of Iowa as a third-party defendant, arguing that it had by ordinance imposed a requirement on the abutting landowner to maintain the sidewalk and that the ordinance was permitted under Iowa Code section 364.12(2)( c ) (2009). The City's motion was granted. The City then filed a cross-petition against the State alleging entitlement to contribution. The State filed a motion to dismiss the City's cross-petition. The district court later denied the State's motion to dismiss the City's cross-claim. The State filed a motion for interlocutory review,
which was granted. For the reasons expressed below, we affirm.
I. Background Facts and Proceedings.
Beth Madden was riding her bicycle on a sidewalk abutting the grounds of the University of Iowa in Iowa City. She lost control of her bicycle, crashed, and sustained an injury. Madden filed suit against the City, claiming that the City owned or had control over the sidewalk and that a defect in the sidewalk caused the accident. She claimed the City was negligent in failing to prevent or remedy the defect, in failing to warn her of the defect, or in otherwise failing to exercise reasonable care in maintaining the sidewalk.
Because the university is publicly funded, the City moved to bring in the State as a third-party defendant. In support of its motion, the City cited its ordinance requiring an abutting property owner to maintain the sidewalk in a safe condition and providing that " [t]he abutting property owner may be liable for damages caused by failure to maintain the sidewalk." Iowa City, Iowa, Code § 16-1A-6 (current through Mar. 4, 2014), available at www.sterlingcodifiers.com/codebook/index.php?book_id=953. The City maintained that the ordinance was authorized by Iowa Code section 364.12(2)( c ), which expressly authorizes cities to enact ordinances requiring abutting landowners to maintain property between the outside property line of the lot and inside the curb lines (which would include sidewalks). The City argues section 364.12(2)( c ) does not expressly authorize cities to impose liability for damages caused by the failure of the abutting landowner to maintain the sidewalk. The district court granted the motion, and the City filed a cross-claim against the State.
The State then filed a motion to dismiss the City's cross-claim. The State raised three arguments in support of the motion. First, the State claimed Iowa Code section 364.12(2)( c ) did not expressly waive sovereign immunity and had the legislature intended to do so, it would have done so expressly. Second, the State argued the City's cross-petition did not allege a claim under the Iowa Tort Claims Act (ITCA), Iowa Code chapter 669, because the cross-petition was based upon a theory of statutory liability, not negligence and therefore immunity was not waived. Third, the State asserted that to the extent the City sought contribution from the State, the claim was fatally flawed because while section 364.12(2)( c ) imposes a duty on an abutting property owner to maintain the sidewalk, it does not impose liability for failure to do so. In a reply brief, the State further asserted the Iowa City ordinance making the abutting landowner liable to the injured person for common law damages " is in effect a tax that is not authorized by the Iowa legislature."
The district court denied the motion to dismiss concluding the City's contribution claim for money damages resulting from Madden's personal injuries was not excluded from the ITCA and that the City's cross-petition adequately pled a claim under the ITCA. With respect to whether the City's cross-petition was based upon statutory liability, and thus was not within the scope of the ITCA because it was not based upon a negligence theory, the district court, pointing to Seeman v. Liberty Mutual Insurance Co., 322 N.W.2d 35, 37 (Iowa 1982), concluded an ordinance can establish a duty, the breach of which supports a negligence claim. Further, the district court concluded the City had pled a valid contribution claim. The district court reasoned that while section 364.12(2)( c ) only expressly authorizes the City to require an abutting property owner
to maintain the sidewalk, the City's ordinance imposing liability permissibly set standards and requirements higher or more stringent than provided in section 364.12(2) and no provision of the state law provides otherwise. Finally, the district court concluded the Iowa City ordinance existed in harmony with the Iowa Code. The State sought interlocutory appeal, which we granted.
II. Standard of Review.
The court reviews the denial of motions to dismiss for errors at law. McGill v. Fish, 790 N.W.2d 113, 116 (Iowa 2010).
III. Overview of Liability of Abutting Property Owner for Sidewalk Defects.
At common law, the general rule was that an abutting property owner was not liable for an injury that resulted from a defective sidewalk. See, e.g., Sexton v. Brooks, 39 Cal.2d 153, 245 P.2d 496, 498 (Cal. 1952); Mendoza v. White Stores, Inc., 488 P.2d 90, 92 (Colo. App. 1971); Major v. Fraser, 78 Nev. 14, 368 P.2d 369, 370 (Nev. 1962); see also C. P. Jhong, Annotation, Liability of Abutting Owner or Occupant for Condition of Sidewalk, 88 A.L.R.2d 331 § 6[a], at 354-57, Supp. 32-34 (1963 and Later Case Service (2009)) [hereinafter Jhong]; 2 Louis A. Lehr Jr., Premises Liability 3d § 36:18 (2013) [hereinafter Lehr], available at www.westlaw.com; 19 Eugene McQuillin, The Law of Municipal Corporations § 54:67, at 232 (3d ed. 2004 rev. vol.). The general rule has sometimes been referred to as the " Sidewalk Accident Decisions Doctrine." Contreras v. Anderson, 59 Cal.App.4th 188, 69 Cal.Rptr.2d 69, 73 n.6 (Ct. App. 1997).
There were two generally recognized exceptions to the common law rule. First, where the owners of property abutting the public sidewalk contributed to or caused the dangerous condition that was the proximate cause of the injury, some courts found the abutting landowner liable. See, e.g., Del Rio v. City of Hialeah, 904 So.2d 484, 487 (Fla. Dist. Ct. App. 2005) (involving city ordinance that " impose[d] upon the owner of abutting property liability for injuries sustained by a pedestrian if the abutting property owner contributed to or caused the dangerous condition in the sidewalk which was the proximate cause of the complained of injury" ); Ward v. Frank's Nursery & Crafts, Inc., 186 Mich.App. 120, 463 N.W.2d 442, 446 (Mich. Ct. App. 1990) (discussing landowner who physically intruded on adjacent public way by casting debris upon it, causing pedestrian's slip and fall). Second, liability could also be imposed if the sidewalk in question was constructed in a special manner for the benefit of the abutting landowner. See, e.g., Peretich v. City of New York, 263 A.D.2d 410, 693 N.Y.S.2d 576, 578 (App. Div. 1999) (involving heavy use of sidewalk by trucks making daily deliveries); Nickelsburg v. City of New York, 263 A.D. 625, 34 N.Y.S.2d 1, 2-3 (App. Div. 1942) (finding installation of rails across sidewalk to permit wheeling of refuse to curb gives rise to liability).
Consistent with the common law rule, it has generally been held that a statute or ordinance that merely imposes a duty to maintain a sidewalk in good repair
does not thrust liability for damages onto the abutting landowner. See Jhong § 6[a], at 354-57, Supp. 32-34; Lehr § 36:18; McQuillin § 54:67, at 238-39; see also Dreher v. Joseph, 60 Conn.App. 257, 759 A.2d 114, 116-17 (Conn.App. Ct. 2000); Robinson v. Arnold, 985 S.W.2d 801, 803 (Mo. Ct. App. 1998). The no-liability theory is based upon the view that a requirement that abutting property owners maintain sidewalks is for the benefit of the municipality, not pedestrians. See Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929, 931 (Cal. Dist. Ct. App. 1944) (noting maintenance statute for the benefit of the city, not for the traveler on the sidewalk); Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1281 (Ind.Ct.App. 2007) (stating statutory duty to maintain sidewalk free of snow and ice not for protection of individuals using the streets, but for benefit of municipalities); Nord v. Butte Water Co., 96 Mont. 311, 30 P.2d 809, 812 (Mont. 1934) (noting that when ordinance requires abutting property owner to keep sidewalk in repair, city's duty to the public is not affected and property owner is joint agent with city officials in performance of city's duty).
In contrast, an ordinance or statute that expressly makes an abutting landowner liable for damages occasioned by the defective condition of sidewalks may give rise to such liability. See Jhong § 7, at 358-61, Supp. 34-36; Lehr § 36:18; McQuillin § 54:67, at 238-39; see also Gonzales v. City of San Jose, 125 Cal.App.4th 1127, 23 Cal.Rptr.3d 178, 181, 185 (Ct. App. 2004); Davison v. City of Buffalo, 96 A.D.3d 1516, 947 N.Y.S.2d 702, 703 (App. Div. 2012); Pardi v. Barone, 257 A.D.2d 42, 690 N.Y.S.2d 315, 317 (App. Div. 1999); Bogomolsky v. City of New York, 259 A.D.2d 719, 687 N.Y.S.2d 176, 177 (App. Div. 1999); Gangemi v. City of New York, 13 Misc.3d 1112, 827 N.Y.S.2d 498, 504 (Sup.Ct. 2006). Express legislative authorization to shift liability onto abutting landowners dates back to the late nineteenth century. See, e.g., Morton v. Smith, 48 Wis. 265, 4 N.W. 330, 330 (Wis. 1880) (involving city charter that obligated abutting property owner to maintain sidewalk and imposed liability for defects).
Iowa has long followed the established common law rule that an abutting property owner is not liable in tort for injuries arising from defects in adjacent sidewalks. See, e.g., Keoukuk v. Independent Dist. of Keokuk, 53 Iowa 352, 355-57, 5 N.W. 503, 506-07 (1880). Further, we have also followed the well-established rule that where a statute requires an abutting property owner to engage in sidewalk maintenance activities, such as the removal of snow and ice accumulations, such an affirmative obligation does not give rise to liability for damages. See Peffers v. City of Des Moines, 299 N.W.2d 675, 677-78 (Iowa 1980), superseded by statute, 1984 Iowa Acts ch. 1002, § 1 (codified at Iowa Code § 364.12(2)( b ) (1985)), as recognized in Fritz v. Parkison, 397 N.W.2d 714, 717 n.1 (Iowa 1986).
IV. Overview of Relevant Statutes and Ordinances.
We begin with a review of the provisions of Iowa Code chapter 364. Chapter 364 generally describes the powers and duties of cities under Iowa law. See Iowa Code ch. 364 (2009). Section 364.12(2) relates to maintaining certain city property, including sidewalks. See Iowa Code § 364.12(2). As relevant, section 364.12(2) provides:
A city shall keep all . . . sidewalks . . . in repair, and free from nuisance, with the following exceptions:
. . . .
( b ) The abutting property owner is responsible for the removal of the natural accumulations of snow and ice from the sidewalks within a reasonable amount of time and may be liable for
damages caused by the failure of the abutting property owner to use reasonable care in the removal of the snow or ice. . . .
( c ) The abutting property owner may be required by ordinance to maintain all property outside the lot and property lines and inside the curb lines upon the public streets . . . .
In light of section 364.12(2)( c ), the City enacted an ordinance that in relevant part, provides that " [t]he abutting property owner shall maintain the sidewalk in a safe condition, in a state of good repair, and free from defects." Iowa City Code § 16-1A-6. The ordinance further provides that " [t]he abutting property owner may be liable for damages caused by failure to maintain the sidewalk."  Id.
The latter-quoted clause gives rise to the controversy in this case. The State claims the City does not have the power to impose liability on an abutting property owner, but may only require the abutting property owner to maintain the sidewalk as expressly permitted by Iowa Code section 364.12(2)( c ).
Finally, Iowa Code section 669.2(3)( a ), which defines " claim" for purposes of the ITCA, generally waives sovereign immunity for
[a]ny claim against the state for Iowa for money only, on account of damage to or loss of property or on account of personal injury or death, caused by the negligent or wrongful act or omission of any employee of the state while acting within the scope of the employee's office or employment, under circumstances where the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death.
A contested issue in this case is whether the City's cross-petition asserts a claim under this provision.
V. Authority of City to Impose Liability by Ordinance on Abutting Landowners for Sidewalk ...