Original Author: Hemsley, Sid
Date of Material: 09/03/1998
Governmental tort liability
Streets--Curbs and gutters
Reviewed Date: 10/07/2020
MTAS was asked if the city owns the sidewalks and is liable for damages and injuries caused from their disrepair.
The answer is yes.
2. Does the City own its sidewalks?
The answer is undoubtedly yes.
Analysis of Question 1
Under the Tennessee Tort Liability Act, the immunity of cities from suits in various areas has been removed, including the area of streets and sidewalks. That Act expressly provides that:
Immunity from suit of all governmental entities is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. “Street” or “highway” includes traffic control devices thereon. [Tennessee Code Annotated, section 29-20-203.] [Emphasis is mine.]
Needless to say, more injuries arise from defective, unsafe, or dangerous conditions on streets and highways than from such sidewalks. However, under the Tennessee Tort Liability Act, cities are clearly liable for injuries arising on such sidewalks.
Analysis of Question 2
Generally cities do not “own” their streets or sidewalks in the sense of owning what is called the underlying “fee.” Usually abutting property owners own the underlying fee to the centerline of the street, and the city owns only a transportation easement or right-of-way across the property for the use of public travel. [See Hamilton County v. Rape, 47 S.W. 416 (Tenn. 1898; Patton v. Chattanooga, 65 S.W. 414 (Tenn. 1901).] But the city owns and controls the easement within the meaning of the Tennessee Tort Liability Act.
The question of whether a city owns the sidewalks is determined the same way the question of whether the city owns the streets and other public ways is determined. Cities become owners of streets and other public ways in the following manner:
1. County streets and sidewalks automatically become city streets and sidewalks upon the incorporation of the city or by annexation of the territory into the city.
2. Formal dedication and acceptance of the right-of-way;
3. Implied dedication and acceptance of the right-of-way, which generally involves the public use of the property as a street or sidewalk, for no fixed period of time;
4. Prescription, which is the open an notorious use of the land for an uninterrupted period of 20 years;
5. Eminent domain.
If the sidewalks abut the streets, or are in near proximity to them (either one of which is likely), there is also a strong likelihood that they are simply a part of the street right-of-way. It was said in Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 19467), that, “The term street in ordinary legal signification includes all parts of the way, roadway, gutters and sidewalks.” [Emphasis is mine.] In that case the width of the street easement was clearly 40 feet, and the question was whether the city had the authority to build a sidewalk within that easement. The Court held that within a street easement a city had the authority to determine the form of public travel.
I do not know in what manner your sidewalks became public sidewalks, but they are undoubtedly open to, and used by, the public. Those facts alone would make them the city’s sidewalks by implied dedication and acceptance, and perhaps by prescription. I am also making an educated guess that if the records of the city were thoroughly researched some record of the formal dedication and acceptance of the streets could be found, and that the sidewalks are within that street right-of-way.
Mike Tallent raised an important point I did not think about in relation to the reconstruction of your sidewalks: They probably must be made handicapped accessible under the American’s With disabilities Act. Generally that involves the installation of curb ramps at street crossings, etc. For that reason, you will probably want to insure that the contractor who gets the construction contract is familiar with the ADA handicapped accessability rules and regulations. I have enclosed a copy of A Look at the MTAS/CTAS Americans With Disabilities Act, and refer you particularly to page 35, New construction and alterations.