Steppin On A Crack May Break Your Mother's Back But It Will Not Break The Municipality's Bank.
On the morning of June 15, 2005, Ms. Enola Wiltz and her husband brought their son to City Hall in Breaux Bridge, Louisiana to renew the son’s driver’s license. As Mrs. Wiltz was walking to the building, she stumbled, but did not fall, over a beveled crack in the sidewalk. As a result of the stumble, Mrs. Wiltz allegedly sustained leg and back injuries and incurred approximately $100,000 in medical expenses. Mr. and Mrs. Wiltz subsequently filed suit against the City of Breaux Bridge and its insurer. 
Following a bench trial, the judge ruled that the Wiltzes failed to prove their case because they did not submit sufficient evidence that the crack in the sidewalk posed an unreasonable risk of harm. Furthermore, there was no evidence to demonstrate that the City knew or should have known about the crack in the sidewalk prior to the accident. The Wiltzes then appealed the trial court’s judgment, contending that it was clearly wrong in failing to find that “a beveled cracked sidewalk, covered and disguised by grass growth on a major sidewalk leading directly into the main organ of commerce for the City causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”
Under Louisiana Revised Statutes 9:2800 (pdf), Louisiana’s Public Entity Liability Statute, in order to prevail at trial, the Wiltzes had to prove that (1) the City owned or had custody of the sidewalk; (2) the sidewalk was defective in that it created an unreasonable risk of harm to others; (3) the City had actual or constructive knowledge of the defect and failed to take corrective action within a reasonable time; and (4) Mrs. Wiltz’s injuries were caused by the defect. The only issues before the appellate court were elements 2 and 3, i.e. whether the sidewalk was defective and the knowledge (actual or constructive) of the city about the crack. In a unanimous decision, the Third Circuit, in the case Wiltz v. ABC Ins. Co., affirmed the ruling of the trial court.
As a preliminary matter, the court noted that under LSA-R.S. 9:2800 a municipality is not required to maintain its sidewalks in perfect condition. Rather, plaintiffs had the burden of proving that that the sidewalk at issue was not maintained in a reasonably safe condition for persons exercising ordinary care and prudence. In making this determination, all relevant moral, economic, and social considerations must be weighed. In affirming the trial court’s conclusion that the sidewalk did not pose an unreasonable risk of harm, the appellate court relied on several factors. First, courts in two earlier cases found that larger cracks did not pose unreasonable risks of harm. Second, there was no evidence that anyone had complained about the crack before the accident. To the contrary, two public officials, including the mayor, testified that they had no knowledge of prior complaints about and/or injuries involving the crack. Finally, the vegetation growing out of the crack didn’t obscure the entire crack, but actually indicated in itself the existence of a crack.
Take-Away: Plaintiffs have a heavy burden in cases against governmental entities to prove that cracks in their sidewalks pose an unreasonable risk of harm. The size of the crack, the degree it is obscured from view and the complaint and injury history related to the defect are all part of the analysis.
This article was co-authored by Chris Irwin, an associate at Irwin Fritchie Urquhart & MooreLLC
