April 29, 2013

"Too big to fail" meets the city hiking trail

By Anthony L. Francois Senior Attorney

Last week a court ruled that a combination sidewalk and recreational trail in the Southern California city of Bradbury is, for public liability purposes, exclusively a recreational trail.  As a result, the leaders of the fine city of Bradbury enjoy immunity from liability for any dangerous conditions which they put in place or allow to remain on their sidewalk/trail.  Some might hail this as a reasonable limit on the ability of the plaintiffs’ bar to extract big verdicts and settlements when their clients suffer minor injuries tripping on a public thoroughfare.  Perhaps.

But Pacific Legal Foundation is not a trip-and-fall plaintiffs’ firm, or tort defense firm for that matter.  So how is this case relevant to our mission and work?  A good question, the answer to which is in the details, where one normally finds the devil.

We expect our governments to be responsible for the property they administer, and competent in the discharge of those responsibilities.  We expect our cities to maintain streets and sidewalks in good repair, and to fix potholes and cracks before they damage our cars or trip senior citizens walking down the street.  In California, a public entity is generally liable for an injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury and the public entity had actual or construction notice of the dangerous condition.

But in California, a city is immune from liability for “recreational trails” under a state statute that modifies the ordinary rule.  So if a city declares a particular walkway to be a recreational trail, it also absolves itself of any liability for dangerous conditions which the city creates or allows to persist on the “trail.”  So why this double standard?  Why does your city owe you a modicum of competence and responsibility if you are walking to the nearest bus stop, but not to the nearest park?  If you are walking in street shoes but not in hiking boots?

The answer of the court: if a local government had to be responsible for trails it builds and maintains, it might choose not to provide them.  As a result of this immunity, cities have fewer prudential checks on whether they need more recreational ammenities, and lack the natural impetus that potential liability provides for properly designing and maintaining infrastructure on public property.

So the result is more of the conduct which may harm to the public, with less caution on the part of the agency causing the harm, and no responsibility when harm occurs.  This sounds like the same rationale on which big government bails out big banks: if someone has to face the consequences, they might conclude it is a bad idea in the first place.  And the same response from the big banks: “if nobody holds us accountable, why make better decisions?”

This view of responsibility, or the lack thereof, has grown so pervasive that now even your local jogging path is too big to fail.

 

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