Robinson v. Arnold , 1998 Mo. App. LEXIS 2328 ( 1998 )

JAMES R. DOWD,

Judge, dissenting.

I dissent.

In 1991, the City of St. Louis (“City”) twice notified defendants in writing that a portion of the sidewalk fronting defendants’ commercial property was in disrepair. On both occasions, defendants were told they would receive thirty days to repair the sidewalk. Defendants concededly agreed to repair the sidewalk but requested an extension of time. The City granted their request on December 6, 1991, giving defendants until September 30, 1992 to fully repair the sidewalk; however, until the sidewalk was fully repaired, the City instructed defendants to patch the problem areas so they were safe for pedestrian traffic. As of September 30, 1992, defendants had taken no action to repair the sidewalk. The City again contacted defendants on March 2, 1993 and advised them to repair the sidewalk or the matter would be referred for prosecution. Defendants finally repaired the sidewalk in June of 1994, almost three years after the first notice of defect and two months after plaintiffs fall.

Although the majority correctly cites the applicable law, I would find that defendants owed a duty to plaintiff to repair the sidewalk based on the particular facts of this case. In my view, by expressly agreeing to repair the sidewalk, defendants assumed a duty that flowed to users of the public sidewalk in general and to plaintiff in particular. A legally binding promise that causes a defect in land to go unrepaired is in fairness and logic the type of legally operative fact that should be recognized by this Court as another kind of affirmative act that can cause an abutting landowner to share the duty to repair.

Unquestionably, the City has a nondelega-ble duty to repair public sidewalks. Contrary to the majority’s belief, finding that defendants assumed a duty to repair is not tantamount to holding that the City can delegate its duty. If a public sidewalk goes unrepaired, the City may not avoid liability on the basis that it contracted with another to repair the defect.¹ The exclusive means for the City to avoid liability is by properly discharging its duty. That the City’s duty is nondelegable, however, has no bearing on whether another may assume the same duty.

The majority’s refusal to recognize an exception to the general rule that an abutting landowner has no duty to repair public sidewalks is apparently grounded on the fear that doing so would dissuade landowners from promising to repair defective sidewalks. To the contrary, the majority opinion likely will encourage more landowners to promise to repair their sidewalks in exchange for the City’s agreement not to prosecute, undoubtedly a valuable legal benefit. By holding that defendants’ non-gratuitous promise to repair establishes no duty, the majority significantly reduces a landowner’s incentive to honor the promise and, as a result, fewer sidewalks will be repaired in a timely fashion.

I would reverse the judgment and remand for trial.

1 . In fact, plaintiff named the City as a defendant in the original petition. The City was dismissed as a defendant, however, because plaintiff failed to notify the mayor of the City within 90 days of her injury as required by section 82.210 RSMo 1994.