Generally, owners do not owe a duty in respect to immediate adjacent property unless they make a “special use” of the property. For instance, if a restaurant puts out tables on a city sidewalk, a duty may arise.
In Wilkins v. Hendel No ED110387 (Mo.App. Oct. 18, 2022) the court explained that the “special use” exception applies if “the abutting property owner (or lessee) uses the public right of way in an alternative manner, such as using it as a driveway or adding an obstruction to the area. Essentially, to create a duty under this exception, there must be evidence that the property was used for something other than what it was intended to be used for.” Conversely, the Court explained that merely plowing snow off the sidewalk does not constitute a special use of the property because there would be no evidence the sidewalk was “used as anything other than a sidewalk.” Applying these rules, the court affirmed a summary judgment for the landowner.
In Wilkins, the possessor’s lateral sewer line vented in the City’s right of way, in a grassy area between the sidewalk and street. The cover was missing, and the plaintiff stepped in the hole, sustaining injuries. The possessor also mowed the grass in this area so would have at least constrictive notice of the condition of an open hole. Keep in mind that owners and possessors own lateral sewer lines and are charges with maintaining those lines. In a defense-friendly decision, the Court held that “The undisputed evidence does not show that Defendants obstructed or made use of the area for any alternative purpose. Instead, the undisputed evidence shows only that Defendants used the vent for plumbing services, as intended and mowed the grass area. This was not evidence that the right of way was used for anything other than its intended purposes and does not constitute a “special use” of the property.”
Note that the Court could just have easily ruled that Plaintiff was injured when they fell into a hole in a lateral line the defendant controlled, and that plumbing services were an alternative use of the City’s right of way. In this case, a favorable opinion and solid win for the good guys!