Liability of Owner - Failure to Maintain Sidewalk
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ORDINANCE NO. 7 -99~~X
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AN ORDINANCE AMENDING SEC. 41-101 PROVIDING
FOR THE DUTY OF THE OWNER OF A SIDEWALK TO
MAINTAIN THE SIDEWALK BY DELETING THE PROVISION
RELATING TO THE LIABILITY OF THE OWNER FOR
FAILING TO MAINTAIN THE SIDEWALK.
NOW, THEREFORE~ BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
Section 1. Sec. 41-101 of the City of Dubuque Code of
Ordinances is hereby amended to read as follows:
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Sec. 41-101. Duty Of OWner To Maintain; Liability
For Failure To Maintain:
The owner of any lot or parcel thereof abutting
upon any sidewalk on the City streets in the City
shall maintain said sidewalk free from cracks,
holes and unevenness so that the sidewalk does
not constitute a safety hazard, and such
conditions are hereby declared a public nuisance.
Section 2. This Ordinance shall take effect upon
publication.
Passed, approved and adopted this 1st
February. 1999 ,X~8X
day of
Attest:
/J,~~
Ma~DaViS' City Clerk
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196 CVCARE PLAZA DUBUQUE IOWA 52001
TELE 319 583-4113 FAX 319583-1040
e-mail balesq@mwci.net
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Effect of Amendment
Sec. 41-101. Duty Of Owner To Maintain; Liability
For Failure To Maintain:
The owner of any lot or parcel thereof abutting upon any
sidewalk on the City streets in the City shall maintain
said sidewalk free from cracks, holes and unevenness so
that the sidewalk does not constitute a safety hazard, and
such conditions are hereby declared a public nuisance. ~
owner of any lot or parcel ,mo fails to so maintain oaid
oidmlcallt l3hall be liable to any person injured al3 a rel3ult
of l3uch failure to maintain l3aid sidewallt and l3hall further
oa7C, defend, indemnify and hold harmless the City from and
against any claim arising out of the failure to maintain
oaid side,...allt.
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196 CYCARE PLAZA DUBUQUE IOWA 52001
TELE 319583-4113 FAX 319583-1040
e-mail balesq@mwci.net
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Brian J. Kane
Gary K. Norby
Les V. Reddick*
D. Flint Drake**
Michael J. Gau*
Brad J. Heying
Todd L. Stevenson*
KANE, NORBY & REDDICK, P.C.
ATTORNEYS
2477 J.F. KENNEDY RD., SUITE 102
DUBUQUE, IA 52002
All admitted in Iowa
,~ Also admitted in Illinois
** Also admitted in Wisconsin
Phone: (319) 582-7980
Facsimile: (319) 582-5312
E-mail: knrpC@mwci.net
January 19, 1999
Mr. Barry A. Lindahl
Corporation Counsel
CyCare Plaza
700 Locust Street, Suite 196
Dubuque, IA 52001
RE: MARION MAUER V. CITY OF DUBUQUE
Dear Barry:
This lawsuit involves a woman who fell on a public sidewalk
adjacent to property owned by Kevin Jaeger. Mauer sued both the
City of Dubuque and Jaeger claiming the sidewalk was in disrepair.
Jaeger moved for a dismissal of the case against him claiming that
a property owner has no legal duty to repair public sidewalks and
that the effort to create such liability in Dubuque's Ordinance 41-
101 was unconstitutional.
For the second time in the last few years, the Iowa District
Court addressed the issue raised in Jaeger's Motion and found that
Dubuque's Ordinance was unconstitutional. The court based its
decision upon the fact that the Iowa Legislature, Chapter 364.12,
specifically imposes liability upon a property owner for the
failure to remove accumulations of snow and ice. While the same
statute allows property owners to be required to repair sidewalks,
it says nothing about imposing liability for the failure to do so.
Based upon the absence of such enabling language, the Court found
Dubuque's Ordinance unconstitutional. Both judges looking at the
issue reasoned the same way.
I believe the Iowa Supreme Court would agree with the District
Court, based upon the same rationale. I think the City of Dubuque
should give some consideration to repealing that portion of Section
41-101 which attempts to impose liability upon property owners for
the failure to repair public sidewalks.
.
Mr. Barry A. Lindahl
January 19, 1999
Page 2
Best personal regards.
Very truly yours,
LVR/bmc
KANE, NORBY & REDDICK, P.C.
BY~
Les V. Reddick
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BARRY A. LINDAHL, ESQ.
CORPORATION COUNSEL
January 20, 1998
Mayor and Council Members
City Hall
Dubuque IA 52001
Re: City of Dubuque Code of Ordinances Sec. 41-101. Duty Of Owner To Maintain;
Liability For Failure To Maintain:
Dear Mayor and Council Members:
Section 41-101 of the City of Dubuque Code of Ordinances provides as follows:
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Sec. 41-101. Duty Of Owner To Maintain; Liability For Failure To
Maintain:
The owner of any lot or parcel thereof abutting upon any sidewalk on the
City streets in the City shall maintain said sidewalk free from cracks, holes
and unevenness so that the sidewalk does not constitute a safety hazard,
and such conditions are hereby declared a public nuisance. The owner of
any lot or parcel who fails to so maintain said sidewalk shall be liable to
any person iniured as a result of such failure to maintain said sidewalk and
shall further save, defend, indemnify and hold harmless the City from and
against any claim arising out of the failure to maintain said sidewalk.
The underlined sentence of the ordinance section was added by amendment in
1989. The intent was to attempt to shift to an abutting property owner liability for
failure to maintain a sidewalk, a duty imposed by state law upon the city.
On two occasions since the ordinance was amended the provision has been held
by the District Court to be contrary to state law as an improper delegation of a
municipal duty. Attached is a letter from Les Reddick, Esq., who defended the
two cases, recommending that the provision be repealed.
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Abutting owner liability for failing to maintain a sidewalk is covered by state law.
I am submitting the enclosed ordinance amendment deleting the second sentence
of the section and would request your consideration and passage of the
amendment.
196 CYCARE PLAZA DUBUQUE IOWA 52001
TELE 319583-4113 FAX 319583-1040
e-mail balesq@mwci.net
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Cc: City Manager
Les Reddick, Esq.
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196 CYCARE PLAZA DUBUQUE IOWA 52001
TELE 319 583-4113 FAX 319 583-1040
e-mail balesq@mwci.net
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