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Liability of Owner - Failure to Maintain Sidewalk ,. ~ ORDINANCE NO. 7 -99~~X . 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: . 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 . 196 CVCARE PLAZA DUBUQUE IOWA 52001 TELE 319 583-4113 FAX 319583-1040 e-mail balesq@mwci.net . 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. . . 196 CYCARE PLAZA DUBUQUE IOWA 52001 TELE 319583-4113 FAX 319583-1040 e-mail balesq@mwci.net . . . 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 . . . 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: . 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. . 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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