Five City Council members met Thursday to talk about how the city can make property owners keep their sidewalks clean of snow. They admitted the task would be a difficult one, but it may be even more complicated than they thought.
That's because it appears that, under state law, property owners have no duty to pick up a shovel – which calls into question local officials' authority to penalize those who don't.
As The News-Sentinel reported Wednesday, numerous complaints about hazards created by unshoveled walks during a winter of near-record snow led five City Council members to create a committee that will study whether the city's 1974 sidewalk-shoveling ordinance – which has never been enforced – can be improved. That ordinance suggests a fine of up to $2,500 per day for failure to clear walks by 9 a.m., and Russ Jehl, R-2nd, suggested Thursday that Neighborhood Code officers be enlisted to penalize non-shovelers.
But several legal precedents cloud Council's ability to enforce anything.
“It is well-settled in Indiana that an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets or sidewalks of ice and snow,” the Indiana Court of Appeals wrote in 2002 in its dismissal of a case filed against Lafayette Home Hospital by a man who was injured after slipping on a sidewalk near the entrance.
The justices cited several prior cases in their ruling, noting that “In Indiana, persons are held to have assumed a duty to pedestrians on public sidewalks only when they create artificial conditions that increase risk and proximately cause injury to persons using those sidewalks.”
In a similar decision five years later, the court also noted that “Municipal ordinances that require abutting owners to remove snow and ice from public sidewalks do not, as a matter of law, create a duty under which an owner or occupier can be held liable to third-party pedestrians. . . . A municipality has a common-law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel. However, there is no similar corresponding duty for owners of property abutting a public sidewalk.”
Tom Smith, R-1st, had suggested other changes that might not be covered by the court's ruling, such as preventing plowed snow from being stored in handicapped spaces. Smith said he was unaware of the Appeals Court's prior rulings, but said any new ordinance – which would take months to develop – would be reviewed by an attorney before presented to Council for consideration. The ad hoc sidewalk committee will meet again in two weeks.
“It's similar to our ordinance about cutting your grass. It's the responsibility of cities to have such laws,” Smith said. “There's no legal obligation to do something until somebody says there is.”