Berkley

Family’s story highlights value of sidewalk upkeep

By Jeremy Selweski
C & G Staff Writer

» click to enlarge « Photo by Chris Langrill The Wienczewski family of Berkley had to repair this section of their sidewalk on Harvard Road after a neighbor tripped and fell. Photo by Chris Langrill The Wienczewski family of Berkley had to repair this section of their sidewalk on Harvard Road after a neighbor tripped and fell. Photo by Chris Langrill Buyer beware: Sidewalk maintenance is the homeowner's responsibility. 0 Photo by Chris Langrill Buyer beware: Sidewalk maintenance is the homeowner's responsibility.

Melissa Wienczewski does not want what happened to her and her family to happen to other Berkley residents.

In March 2010, a neighbor sustained an injury after she tripped and fell over a raised slab of sidewalk in front of the house where Wienczewski, her husband, Brock, and their two young children live on Harvard Road. When the neighbor attempted to sue the city a year later, city officials requested that the Wienczewskis be included in the lawsuit because as the homeowners, they are responsible for maintaining their own sidewalk.

The lawsuit dragged on for many months before the Wienczewskis’ insurance company eventually settled out of court. Although the insurance company footed the bill for their legal costs, this caused an immediate increase in their homeowner’s insurance premium of about 30 percent.

“We were just outraged,” Melissa Wienczewski said. “The whole thing really blew our minds. We just thought it was unfair that the city does not let residents know that this is their own responsibility.”

Until that point, the Wienczewskis had thought that the city maintained the sidewalks and homeowners shared in the cost of any necessary repairs. Melissa Wienczewski said that when the lawsuit was filed, she made numerous phone calls to city employees and was surprised to discover that the city no longer has a sidewalk replacement program. She was told that it was up to the homeowner to determine when maintenance was required and pay for it themselves.

After speaking to some of her neighbors, Wienczewski learned that many other Berkley residents were unaware that these repairs were entirely up to them. They also seemed to be in the dark about the severe financial impact that a trip-and-fall accident could cause.

According to City Manager Jane Bais-DiSessa, Berkley’s sidewalk replacement program has not been in place since around 2001. Still, she emphasized that the program “has not been eliminated. It was simply put on hold for a while because we couldn’t afford it anymore.”

Bais-DiSessa confirmed that it is the residents’ duty to maintain their own sidewalks. But because the right-of-way between the sidewalk and the curb is technically city property, the sidewalk itself is often thought of as a gray area.

“The sidewalk is still part of the residents’ property, but it is in the city’s right-of-way,” she explained. “We have to be able to access that space to make emergency repairs to utility lines or to remove trees if necessary.”

Bais-DiSessa pointed out that if a slab of sidewalk is in especially bad shape to the point where it poses a safety hazard to the public, the city’s code enforcement officer will typically notify the property owner that it must be replaced. However, Berkley does not have the resources to keep an eye on all of its sidewalks, so trip-and-fall lawsuits do sometimes occur. When that happens, Bais-DiSessa said, “nine times out of 10” the plaintiff will file a lawsuit with the city first, rather than with the property owner.

“We try to work jointly together with residents and business owners on this, but it really depends on the situation,” she said. “At this point, we just try to look at it on a case-by-case basis. If we can negotiate with the person filing the complaint, we always try to do that instead of going to court. That’s our preferred way of handling it.”

According to Public Works Director Derrick Schueller, while cities in southeast Oakland County have various approaches to keeping their sidewalks in good shape — Ferndale, Royal Oak and Madison Heights are among those that are currently starting up their 2012 sidewalk replacement programs — this maintenance is ultimately the responsibility of the residents and business owners. Just because the city is not choosing its own contractor to come out and assess slabs of sidewalk and then billing the property owners does not make a difference.

“Sometimes you get people who don’t want to pay or don’t feel that sidewalk replacement is necessary,” Schueller said, “but they need to understand that it’s up to them to make sure their sidewalk is safe. People are always welcome to call us for help on this. We don’t recommend contractors, but we can connect them with some other options.”

When it comes to keeping residents informed about their duties, Bais-DiSessa said that Berkley officials try to use the city website, the cable TV station and public meetings to provide occasional reminders. But at the end of the day, they can only do so much.

“When people move into a new city, they should go to City Hall and make sure they’re aware of what they are responsible for in terms of property maintenance,” she said. “Unfortunately, we as a city do not have the resources to constantly remind people about these things.”

Looking forward, though, city officials are considering taking greater action. Because it has been over 10 years since the last time Berkley’s sidewalk program was active, Bais-DiSessa believes that it may soon need to be reinstated.

“We’ve had some very lean years here,” she said, “so we’ve been forced to forego a lot of programs that we would like to continue. Our sidewalks are still in pretty good shape, all things considered, but we cannot allow them to fall into such disarray that they become a danger to people.”

Schueller echoed that sentiment. He also pointed out that because of the steadily growing need for repairs to local streets and sidewalks, the city may soon have to come before Berkley voters with a new road bond proposal.

“I don’t think we can afford to wait much longer,” he said. “We’ve been able to take some really basic preventative action, but that’s about it. We’re going to need a road bond if we want to keep our streets from falling apart.”

If not, lawsuits like the one that the Wienczewskis were hit with may become a recurring theme in Berkley. This is why Melissa Wienczewski wants her fellow residents to be aware of what might be in store for them if their sidewalk is badly deteriorating and they choose to ignore it.

“The bottom line is that people need to know that this is their responsibility to maintain,” she said, “so it’s up to them to go out and get it fixed. If you don’t and you get sued, then you are legally responsible for it, and you will have to face immediate financial consequences.”
 

You can reach C & G Staff Writer Jeremy Selweski at jSelweski@candgnews.com or at (586)218-5004.