Exterior premises liability cases usually begin with the premise that the owner of the property abutting the sidewalk has primary responsibility for the sidewalk, while the municipality’s liability is secondary. Storm drains are often installed underneath a portion of the sidewalk, but are maintained and inspected much more often by the municipality water department, which typically cleans and clears the drains on a yearly basis. Some drains are now also used by utility companies to run lines underground, adding to the wear and tear of the sidewalk stone above the drain. In addition to Stephen King’s Pennywise, poor workmanship below can also cause erosion of the subsurface which can cause a depression in the asphalt.
If the water department sees a defective condition near the drain that they believe the property owner should be responsible for, the water department should issue a notice to the property owner. In most instances, however, the property owner is not provided with any information about either the municipality or the utility company using the drain, nor are they asked permission. The property owner is almost never notified of any maintenance, repairs or work performed on the storm drain in their adjacent sidewalk. Even if a property owner becomes aware of work being performed, there is often no mechanism by which the property owner can direct any of the work performed on the storm drain. Despite the property owner’s powerlessness to control this particular portion of the sidewalk, the law still holds them primarily responsible.
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