Pearson v. Boise City

• Decision Date: 05 January 1959
• Docket Number: No. 8649,8649
• Citation: 333 P.2d 998,80 Idaho 494
• Parties: Jean L. PEARSON, a widow, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation of the State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 998

333 P.2d 998

80 Idaho 494

Jean L. PEARSON, a widow, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation of the State of Idaho, Defendant-Respondent.

No. 8649.

Supreme Court of Idaho.

Jan. 5, 1959.

Rehearing Denied Jan. 26, 1959.

Charles F. Reddoch, Charles S. Stout, Boise, for appellant.

Coughlan, Imhoff & Shepard, C. Stanley Skiles, Boise, for respondent.

SMITH, Justice.

Appellant has appealed from a judgment of dismissal entered by the trial court upon sustaining respondent's general demurrer to appellant's amended complaint without leave to amend. Material facts alleged in the amended complaint are hereinafter related.

Appellant, an elderly woman, received personal injuries December 7, 1956, when she slipped and fell on respondent's cement sidewalk. The sidewalk, twelve feet wide where the accident happened, is situate at the northwest corner of the intersection of Sixth and Idaho Streets, within respondent's corporate limits.

Appellant alleges that during 1908, respondent constructed such sidewalk without a downward slope of .25 inch to the foot from the lot line to the curb line as required by respondent's ordinances; that instead, the sidewalk at about one foot from the arc of the curb is approximately one inch higher than at a point therefrom approximately 6 feet northwesterly, which resulted in an angular swale-like depression about 7 feet in length and 4 feet wide; that near the east end of the depression an area, approximately one-half of a four foot section of the sidewalk, had sunk approximately one-half inch, leaving a depression of that size about one and one-half inches in depth at the easterly end of the sunken area, which condition had obtained for more than three years last past and was known, or by exercise of reasonable diligence should have been known, to respondent.

Appellant further alleges that during the morning of December 7, 1956, the depression became filled with water from melted snow which fell the previous evening; that sudden falling temperature during the morning of December 7, 1956, caused the water collected in the depression to become frozen 'with a surface of hard, smooth glazed ice'; that falling snow then covered the ice to a depth of about one inch.

Appellant then alleges that about 11:00 a. m. on said date, while walking on and along such area, exercising due care and without knowledge of such defective condition, she slipped on said ice and fell, sustaining personal injuries; then follows allegations of respondent's negligence, causative of appellant's general and special damages.

Respondent interposed a general demurrer to appellant's amended complaint, which the trial court sustained. Appeal resulted, from the judgment of dismissal without leave to amend.

Appellant assigns error of the trial court in sustaining the demurrer and entering the judgment of dismissal.

Appellant alleges respondent's negligence to have been the faulty construction and the sunken condition of the sidewalk, forming the swale-like depression in which water collected, became frozen and covered with snow, and that an alleged dangerous condition so created which respondent failed to remedy, proximately caused appellant's injuries.

We mention certain well established principles relating to the duty of municipalities to care for and maintain streets and sidewalks for public travel.

Municipalities are not insurers of the safety of those who use the sidewalks. Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann.Cas. 1107; Beezley v. Olson, 129 Colo. 406, 270 P.2d 758; Ritgers v. City of Gillespie, 350 Ill.App. 485, 113 N.E.2d 215; McQuillin, Municipal Corporations, 3rd Ed., Vol. 19, § 54.80, p. 260. Municipalities are charged with the duty of keeping streets in reasonably safe condition for public travel and are liable for damages for injuries sustained only in consequence of their negligent discharge of such duty. Carson v. City of Genesee, 9 Idaho 244, 74 P. 862, 108 Am.St.Rep. 127; Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262; Village of Sand Point v. Doyle, 11 Idaho 642, 83 P. 598, 4 L.R.A., N.S., 810; Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am.St.Rep. 225; Miller v. Village of Mullan, supra; Powers v. Boise City, 22 Idaho 286, 125 P. 194; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789; Hendrix v. City of Twin Falls, 54 Idaho 130, 29 P.2d 352. See also Carl v. New Haven, 93 Conn. 622, 107 A. 502, 13 A.L.R. 1; Beezley v. Olson, supra; Ritgers v. City of Gillespie, supra; Hood v. Allen, 190 Tenn. 56, 227 S.W.2d 534, 16 A.L.R.2d 1286; Annotation, 13 A.L.R. 18; Annotation, 39 A.L.R.2d 787-788.

Mere slipperiness of a sidewalk, occasioned by smooth or level ice or snow is insufficient to charge the municipality with liability for injury resulting therefrom where the snow or ice does not constitute an obstruction. Wilson v. City of Idaho Falls, 17 Idaho 425, 105 P. 1057; Leonard v. City of Muscatine, 227 Ia. 1381, 291 N.W. 446; Kelleher v. City of West St. Paul, 193 Minn. 487, 258 N.W. 834; Casper v. City of Chicago, 320 Ill.App. 269, 50 N.E.2d 858; Speakman v. City of Dodge City, 137 Kan. 823, 22 P.2d 485; City and County of Denver v. Dugdale, 127 Colo. 329, 256 P.2d 898; Beezley v. Olson, supra; McQuillin, Municipal Corporations, 3rd Ed., Vol. 19, §§ 54.79 and 54.84; Annotation, 13 A.L.R. 23; Annotation, 39 A.L.R.2d 794.

The reasons for the aforementioned rule are stated in McQuillin, Municipal Corporations, 3rd Ed., Vol. 19, § 54.84, p. 316, supported by a wealth of authorities, in language as follows:

'In certain seasons and localities, as is well known, it would be burdensome, if not impracticable, to impose the duty on the municipality to keep its sidewalks clear of snow and ice at all times. Pedestrians must assume the risks attending a general slippery condition of sidewalks produced by natural causes and which remain despite the efforts of reasonable care and diligence.'

See also Wilson v. City of Idaho Falls, supra; Ritgers v. City of Gillespie, supra; Annotation, 13 A.L.R. 24.

A municipality is bound to exercise only ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition. Miller v. Village of Mullan, supra; Powers v. Boise City, supra; Baillie v. City of Wallace, supra; Goodman v. Village of McCammon, supra; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057; 63 C.J.S. Municipal Corporations § 802, p. 114 and § 803, p. 120; McQuillin, Municipal Corporations, 3rd Ed., Vol. 19, § 54.12, p. 55.

Appellant states the rule upon which she relies, as follows: 'We rely upon the principle that where an injury results from the slippery condition of a walk, together with a defect in the walk, a municipality is liable therefor if the defect in the walk is the proximate cause of the injury.'

More liberal well-recognized announcements recognize that the defect may be either the contributing cause or the proximate cause; also that both the defect and the slippery condition operation concurrently may be regarded as the proximate cause. These interrelated principles are to be found many times announced by the various authorities.

The early Massachusetts cases which appellant cites quite uniformly hold that, to constitute the proximate cause of the injury the defect must be shown to have been of such gravity as to constitute the special cause for the formation of the ice, in addition to natural weather conditions. See Pinkham v. Inhabitants of Topsfield, 1870, 104 Mass. 78, wherein a roadway, because situate upon a steep, springy hillside, and sloping both downward and sidewise, was found defective and thus responsible for a dangerous condition when ice formed thereon; Fitzgerald v. Inhabitants of Woburn, 1872, 109 Mass. 204, wherein a sidewalk as constructed, which artificially impounded water thereon from a nearby improperly drained gutter, was held defective, and thereby responsible for a dangerous icy condition; Spellman v. Inhabitants of Chicopee, 1881, 131 Mass. 443, wherein was held defective a walk having a depression in which water collected, forming ice when the rest of the walk was clear; Adams v. Town of Chicopee, 1888, 147 Mass. 440, 18 N.E. 231, wherein a walk was held defective because its improper construction, forming a basin, induced a special and constant deposit of ice thereon; and Hughes v. City of Lawrence, 1894, 160 Mass. 474, 36 N.E. 485, wherein a walk was held defective because constructed with a gutter extending across it, which caused the formation of a special artificial deposit of ice.

Appellant also cites Massachusetts cases in support of the rule upon which she relies decided after the enactment of Mass.Stat.1896, ch. 540; such statute provided that no municipality shall be liable in damages for an injury suffered by reason of snow or ice, if the place at which the injury was received was at the time of the accident otherwise reasonably safe for travelers.

The Massachusetts court construed this statute as impressing liability if the defect be either the contributing or the proximate cause; or if the two factors, i. e., the defect and the slippery ice, operated concurrently as the proximate cause. To effect recovery grounded upon the municipality's negligence, it still was necessary to show that the defect was more than slight, i. e., unusual and by itself of sufficient gravity as to support an accusation of culpable negligence; and that under no circumstance could liability be impressed, if resting solely upon the single factor of the icy condition brought about by natural weather conditions. Analysis follows of those cited cases.

In Naze v. Town of Hudson, 1924, 250 Mass. 368, 145 N.E. 468, the plaintiff was allowed recovery for an injury sustained (1) from stumbling on a sidewalk obstructed by a root from a bordering stump, extending into and raising...