Opinion
C.A. No. 99C-02-170
Submitted: May 31, 2000
Decided: April 20, 2001 Amended: April 23, 2001
On the Defendant's Motion for Summary Judgment on the Issue of the Constitutionality of 1 Wilm. C. § 42-42.
Robert K. Pearce, Esquire, TRUSKOWSKI, KIPP, KELLEHER PEARCE, P.A., Attorney for the Defendants.
Stephen F. Dryden, Esquire, ROBINSON GRAYSON P.A., Attorney for the Plaintiff.
OPINION AND ORDER STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
This case arises out of personal injuries sustained by the Plaintiff, Jane Latchford, on September 25, 1997, when she tripped on an uneven sidewalk abutting property owned by the Defendants, Frank and Margaret Schadt. The Defendants have moved for summary judgment on the issue of negligence. The motion is based upon three contentions. First, the Defendants claimed that 1 Wilm. C. § 42-42 is unconstitutional and therefore negates any duty owed by the Defendants to the Plaintiff. Next, they argue that because 1 Wilm. C. § 42-42 conflicts with the Premises Guest Statute, § 25 Del. C. § 1501, it is unenforceable. And lastly, because § 42-42 sets no specific standard of conduct, the Defendants argue that it cannot be used as a basis for nuisance per se
All further references to sections of the Wilmington City Charter and Code shall be by section only.
The court addressed the second and third issues raised by the Defendants in its April 10, 2001 Opinion. Latchford v. Schadt, Del. Super., C.A. No. 98C-02-170, Toliver, J. (Mem. Op.) (April 10, 2001). Therefore, the Court will not revisit these issues in this Opinion and will focus solely on the issue of the constitutionality of § 42-42.
On May 31, 2000, the Court addressed the Defendants' attack on the constitutionality of § 42-42. By Order, it held as a matter of law that § 42-42 was a constitutional delegation of responsibility for sidewalk repairs. Latchford v. Schadt, Del. Super., C.A. No. 98C-02-170, Toliver, J. (May 31, 2000) (ORDER). In response to this ruling, the Defendants filed a motion for reargument and/or clarification of the Court's Order. That which follows is the Court's summation of its reasoning underlying its May 31, 2000 Order.
DISCUSSION
Having raised the instant challenge, the Defendants bear the burden of showing that the § 42-42 is unconstitutional. "It is well settled law that a presumption exists in favor of an ordinance and the burden of establishing its invalidity is on the person attacking it." Tucker v. Crawford, Del. Super., 315 A.2d 737, 741 (1974). Therefore, as a starting point, it must be held that the enactment of the ordinance is a presumptively valid exercise of power by the Wilmington City Council and will remain presumptively valid until the Defendants present sufficient evidence or argument to overcome this presumption.
Section 42-42 reads:
(a) Every sidewalk or footway between the curb stone and the building line, and every curb, along any of the public streets in the city, in front of lots whereon is erected any dwelling house, office, place of business, railing, fence, stone or brick wall, or permanent structure of any kind, or in front of such vacant lots as shall have been paved, shall at all times be kept in proper condition and free from obstruction and defective conditions. Any side-walk, footway or curb, which shall become uneven or in which there shall be holes caused by the wear or removal of the material of which it is composed or in which there shall be depressions or in which there shall be loose bricks or loose material or which shall become broken or thrown into ridges or forced out of normal position by trees, tree roots, frost or other means; or which shall be unfit for use as a footway or sidewalk or curb by reason of being covered with weeds, mud, dirt, filth or other objectionable matter or which shall be out of proper condition from any cause, natural or artificial, shall be deemed to be a nuisance.
(b) The owner of any property or ground abutting on such defective sidewalk or footway, or curb, or the authorized agent of such owner, shall be solely responsible for any damage that may result to persons or property by reason of any hole, excavation or obstruction in or upon such footways, or from any defective condition of such sidewalk, footway or curb.
Neither party disputes that the duty to care for the City sidewalks is imposed upon the City by virtue of the Wilmington City Charter. However, the Defendants argue that this duty was unconstitutionally divested to the abutting landowners by the City Council's adoption of § 42-42. Specifically, they contend that by enacting § 42-42, City Council amended the Charter by a simple vote of that body when the Charter can only be amended by referendum pursuant to 22 Del. C. § 811.
The term "sidewalk" specifically includes "footways". 1 Wilm. C. § 1-2.
1 Wilm. C. § 5-400 states in relevant part:
The department of public works shall have the power and its duty shall be to perform the following functions:
(a) City streets, etc., generally. It shall itself, or by contract, design, construct, repair and maintain city streets, which shall include highways . . . footways . . .
The Plaintiff states that the Defendants' argument is flawed because it completely ignores the relevant statute on this matter, 22 Del. C. § 802, otherwise known as the Home Rule Statute. Specifically, the Plaintiff counters that City Council's enactment of § 42-42 is an appropriate exercise of the City's police power vested in it by and in accordance with the Home Rule Statute. Section 22 Del. C. § 802 reads in pertinent part:
Every municipal corporation in this State . . . may, subject to the conditions and limitations imposed by this chapter, amend its charter so as to have and assume all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute. . . .
Case law commenting on the scope of § 802 indicates that the City assumes broad authority over local government and the power to enact laws that are local in nature. "The purpose of the home rule provisions was to enable municipalities to exercise the powers of the sovereign except as limited by either the State Constitution or State statute." NAACP v. Wilminaton Med. Ctr., D. Del., 426 F. Supp. 919, 927 (1977); see also, Yacucci v. Tenhoopen, Del. Super., 550 A.2d 327, 328 (1988). "[A]s a home rule city, Wilmington is to be considered the sovereign for the purposes of municipal functions." Wilmington v. Lord, Del. Super., 340 A.2d 182, 183 (1975). It gives the City complete power of legislation and administration of its municipal functions. Gage v. Wilmington, Del. Supr., 293 A.2d 555, 557 (1972). It also grants the City the power to enact ordinances which are necessary and proper for executing any of its express or implied powers. § 1-101. Finally, by virtue of the Home Rule Statute, a municipality may assume "all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration and which are not denied by statute." Gage at 557.
In the first instance, while the Defendants contend that the enactment of § 42-42 was, in fact, an unconstitutional exercise of power by the Wilmington City Council, they fail to cite any specific provision of either the Delaware State Constitution or the United States Constitution that this ordinance violates, or how it is unconstitutional. Nor is the constitutional provision upon which the Defendants rely readily discernable from the ordinance itself or any related law or statute.
Secondly, the Delaware Courts have dealt with similar sidewalk ordinances in the past where constitutionality was an issue. Specifically cited by the parties are two Nineteenth Century cases which deal with the amendment of a City of Wilmington sidewalk ordinance. A review of those cases is helpful.
Seward v. Wilmington, Del. Super., 42 A. 451 (1896); and Wilmington v. Ewing, Del. Supr., 43 A. 305 (1899).
In Seward v. Wilminaton, the plaintiff was injured when she stepped into a hole or excavation located in a Wilmington sidewalk and sued the City. The City raised the defense that an ordinance enacted in 1889 absolved it of any and all liability for injuries arising out of defects in or obstructions on the sidewalk. In response, the plaintiff attacked the constitutionality of the ordinance in question because amending the City Charter was not specifically provided for in the Delaware Constitution. The Superior Court, in its charge to the jury, agreed. By accepting duties and liabilities under the City Charter, the City could not divest those rights or duties by amendment unless the right to amend was specifically provided for by statute. Therefore the amendment of the City Charter was held unconstitutional. Id. at 454. Seward is the only legal authority cited by the Defendants in support of their position on this issue.
1 Wilm. C. § 121 (1889).
Interestingly, in Seward, like in this case, there is no mention of the basis upon which the attacking party asserts its claim of the unconstitutionality of the ordinance.
Included in the Defendants' argument against the constitutionality of § 42-42 are citations to Eck v. Birthright of Del., Del. Supr., 559 A.2d 1227 (1989) and Massey v. Worth, Del. Super., 197 A. 673 (1938). These citations stand for the proposition that abutting landowners have no duty to repair public sidewalks absent a statute or ordinance to the contrary. These cases and this proposition do not provide any assistance in resolving the issue of the constitutionality of § 42-42. Debs' Opening Br. at 3.
Three years later, the Delaware Supreme Court examined the constitutionality of the same sidewalk ordinance. In Wilmington v. Ewing, the plaintiff brought a negligence action against the City for injuries attributable to defective "gutter plates". Again, the City claimed to be protected by the City Charter as amended in 1889. The Supreme Court, in holding in favor of the City and without referring to Seward, held:
the legislature has, by an amendment of the charter of the City of Wilmington, limited the liability of the city to cases of defective condition of footways "caused by the city or any of its authorized agents," and we hold that the said limitation was within the power of the legislature; that the amendment, so far as this case is concerned, is constitutional and valid; . . .Ewing at 309. Stated differently, the Supreme Court concluded that amending the Charter was not constitutionally prohibited.
The Supreme Court in Ewing did not expressly overrule or even mention Seward. However, given its contrary ruling, the conclusion must be reached that Seward had been overruled to the extent that it conflicted with the Supreme Court's holding in Ewing. No other reading of the two cases is realistic.
There are two distinguishing characteristics between these cases and the present situation. As stated above, both were decided in the Nineteenth Century, long before the enactment of the Home Rule Statute. In addition, the sidewalk ordinance that was challenged in Seward and Ewing was enacted by the State legislature; not as is the case here, by the Wilmington City Council. Consequently, neither case resolves the question of whether § 42-42 is constitutionally valid. Moreover, because Ewing implicitly overruled Seward, Seward cannot be relied upon by the Defendants as controlling precedent on this matter.
The Home Rule Statute was established by the General Assembly on December 28, 1961. Its inclusion in the Wilmington City Charter became effective on July 1, 1979 pursuant to its passage by referendum on November 7, 1978.
More recently, the Superior Court has recognized that municipalities, by exercising home rule power, may enact ordinances inconsistent with preexisting state statutes of local application. Yacucci at 328. Additionally, in Ptomey v. Rago, the Superior Court recognized that due to varying levels of urbanization, the determination of the rights and duties associated with the maintenance and use of the public sidewalks has been, and is, more suitably made by local government. Ptomey v. Rago, Del. Super., C.A. No. 83C-DE-114, Balick, J. (Jan. 11, 1989) (Letter Op. at 2-3). As applied to the issue at hand, these two cases stand for the proposition that the by virtue of its adoption of the Home Rule Statute, the City of Wilmington is empowered with the authority to regulate, among other things, the maintenance of city sidewalks.
Up to this point, the Court has assumed arguendo that § 42-42 amends § 5-400 of the Wilmington City Charter, as opposed to simply delegating that obligation to the abutting landowner. The Defendants do not to address the distinction, but rather, appear to assume that the enactment of the § 42-42 constitutes an amendment of the Charter. The Defendants also argue that because the City Charter specifically imposes a duty on the City to maintain the City sidewalks, the City may not "divest" this duty to its citizens absent a referendum pursuant to 22 Del. C. § 811-815. Once again, there is an absence of any legal authority cited for either proposition.
Section 5-400 of the Wilmington City Charter imposes a duty upon the City to "design, construct, repair and maintain city streets." By enacting § 42-42, the City has not "divested" itself of its duty, it has merely "delegated" part of its duty under § 5-400 to abutting landowners. The distinction between "divest" and "delegate" in this regard is an important one. To "divest" itself of its duty under § 5-400 would be tantamount to the City passing a law that eliminates without exception the City's obligation under § 5-400. The Wilmington City Council did not do take such action by enacting § 42-42. Instead, it delegated or passed on this responsibility to abutting landowners. If the abutting landowner fails to do so, the City is empowered to remedy the defect and recover the costs of its efforts from the aforementioned individual or entity. See § 42-43. Consequently, by enacting § 42-42, the City has not divested itself of its duty imposed by § 5-400 or amended that section of its Charter.
Given the facts and circumstances surrounding the enactment of § 42-42, it is clear that the City may constitutionally and/or legally delegate the duty of maintenance of the city sidewalks upon abutting landowners and may likewise impose liability upon them for any failure in this regard. In doing so, the City did not amend its charter. By enacting § 42-42, the City was legitimately exercising the broad authority to govern itself provided via its home rule status.
CONCLUSION
For the foregoing reasons, the City of Wilmington's enactment of 1 Wilm. C. § 42-42 was a constitutional exercise of the City's authority under the 22 Del. C. § 802 as adopted by the Wilmington City Charter. The Defendant's motion for summary judgment must be, and is, as a result, denied.
IT IS SO ORDERED.