ALBERTILE v. Louis & Alexander Corp.

• Decision Date: 25 August 1994
• Docket Number: No. 93-CV-136.,93-CV-136.
• Citation: 646 A.2d 1001
• Court: D.C. Court of Appeals
• Parties: Myra ALBERTILE, Appellant, v. LOUIS & ALEXANDER CORPORATION, et al., Appellees.

646 A.2d 1001

Myra ALBERTILE, Appellant, v. LOUIS & ALEXANDER CORPORATION, et al., Appellees.

No. 93-CV-136.

District of Columbia Court of Appeals.

Submitted June 14, 1994.

Decided August 25, 1994.

Robert C. Freed, Washington, DC, filed a brief for appellant.

Melvin R. Wright and Elisa A. Eisenberg, Washington, DC, filed a brief for appellee Louis & Alexander Corp.

Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and GALLAGHER, Senior Judge.

SCHWELB, Associate Judge:

This appeal arises from an action for personal injuries allegedly suffered by appellant Myra Albertie when she fell on snow and ice on the sidewalk adjacent to a Burger King restaurant in northwest Washington, D.C. The trial judge granted summary judgment in favor of the operators of the restaurant (Louis & Alexander Corporation) and the owners of the real property on which the restaurant was located (Gartenhaus Associates), concluding that the defendants owed Ms. Albertie no duty of care at common law or under the District's snow removal statute, D.C.Code §§ 7-901 et seq. (1989).¹

On appeal, Ms. Albertie's primary contention is that the snow removal statute imposed a duty upon the defendants vis-a-vis Burger King customers to clear away the snow on the sidewalk adjacent to the restaurant. That statute, however, expressly authorizes enforcement by the Corporation Counsel, but makes no provision for a private right of action. Under these circumstances, and in light of persuasive precedent in this jurisdiction, we cannot agree with Ms. Albertie's position.

Ms. Albertie also claims in her brief that the defendants negligently increased the risk of injury to Burger King customers by clearing away the snow but failing to spread sand on the sidewalk after it had been cleared, and that this failure proximately caused her injuries. This contention, however, was not raised in the trial court or addressed by the trial judge, and we perceive no plain error on the part of the judge in failing to rule in Ms. Albertie's favor on his own initiative on the basis of a theory not advanced to him. Accordingly, we affirm.

I.

The record before the trial court, viewed (as it must be) in the light most favorable to Ms. Albertie, See Clyburn v. 1411 K St., Ltd. Partnership, 628 A.2d 1015, 1017 (D.C.1993), discloses that there was a snowstorm in the Washington, D.C. area on January 22, 1987, and during the night that followed, and that approximately eleven inches of snow fell on the city. There was no further accumulation after 6:00 a.m. on January 23, 1987.

At approximately 5:45 p.m. on January 23, Ms. Albertie, who had been shopping at a nearby Safeway supermarket, decided to make a purchase at the Burger King. She walked along a narrow path that had apparently been shovelled along the sidewalk in front of the restaurant. There were, however, patches of ice in the cleared area. Ms. Albertie claimed that she was being "extremely careful to prevent my falling." Nevertheless, she slipped, fell, broke her ankle, and suffered "excruciating pain." Ms. Albertie filed a timely suit against both Louis & Alexander and Gartenhaus.

Louis & Alexander filed a motion for summary judgment, which the trial judge granted in a three-page written order. Gartenhaus subsequently joined the motion, and the judge also granted summary judgment to that defendant. This appeal followed.

II.

We think it beyond dispute that Ms. Albertie had no right of action at common law against either defendant for failing to clear the snow. In Norville v. Hub Furniture Co., 59 App.D.C. 29, 32 F.2d 420 (1929), the court stated the applicable "rules and principles of the common law" as follows:

In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the side walk in front of it free from ice and snow coming thereon from natural causes, ... nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he owes to ordinary pedestrians.

Id. at 30, 32 F.2d at 421 (citations omitted); accord, Hecht Co. v. Hohensee, 65 App.D.C. 328, 329, 83 F.2d 585, 586 (1936); Radinsky v. Ellis, 83 U.S.App.D.C. 172, 167 F.2d 745 (1948). As the court explained in Radinsky, this is because sidewalks in the District of Columbia

are publicly owned, and are controlled exclusively by the municipal authorities of the District. It is, therefore, primarily the duty of the local government to keep its sidewalks in a reasonably safe condition after a snowfall.

Id. (footnote omitted).

Ms. Albertie does not directly challenge the proposition that her principal claim would be barred at common law, but relies instead on the snow removal statute, D.C.Code §§ 7-901 to 7-906. The first section of that legislation provides as follows:

It shall be the duty of every person, partnership, corporation, joint-stock company, or syndicate in charge or control of any building or lot of land within the fire limits of the District of Columbia, fronting or abutting on a paved sidewalk, whether as owner, tenant, occupant, lessee, or otherwise, within the first 8 hours of daylight after the ceasing to fall of any snow or sleet, to remove and clear away, or cause to be removed and cleared away, such snow or sleet from so much of said sidewalk as is in front of or abuts on said building or lot of land.

Id. § 7-901. The legislation does not include any provision authorizing enforcement by a private action for damages. Section 7-906, on the other hand, authorizes and directs the Corporation Counsel to enforce the statute.²

We decline, under these circumstances, to read a private right of action into the snow removal law. As we recently reiterated in Brantley v. District of Columbia, 640 A.2d 181 (D.C.1994),

where a statute or regulation expressly provides a particular remedy, a court must be chary of reading others into it. Where, as here, the legislature has specified the relief which is appropriate to redress a violation, courts are not authorized to devise different (and in this case far more drastic) remedies: expressio unius est exclusio alterius.

Id. at 184 (citations and internal quotation marks omitted).

Moreover, there is precedent in this jurisdiction which strongly supports the conclusion that Ms. Albertie has no right of action under D.C.Code § 7-901. In Radinsky, a suit brought on behalf of a schoolboy who had slipped on an icy sidewalk outside the defendant's apartment house, the court concluded that the snow removal law imposed no obligation on property owners vis-a-vis pedestrians. The court described such legislation as "an attempt on the part of the municipality to shift to the shoulders of individual citizens the burden which it is primarily incumbent on itself to bear," 83 U.S.App. at 173, 167 F.2d at 746 (citing McGuire v. District of Columbia, 24 App.D.C. 22, 28 (1904)), and adverted to the provision in the statute for enforcement by the Corporation Counsel. Id. The court went on to state that

it is uniformly held that an ordinance requiring lot owners to keep the sidewalks free from snow and ice, and imposing a penalty for neglect or failure to do so, does not relieve the municipality of this primary duty with respect to the safety of its public streets, and does not impose a civil liability on the lot owner in favor of a third person injured by reason of its violation.

83 U.S.App.D.C. at 173 n. 6, 167 F.2d 745 n. 6 (emphasis added) (quoting Annotation, Statute or ordinance requiring abutting owner to remove snow and ice from sidewalk as affecting liability for injuries, 24 A.L.R. 387, 388 (1923)).³

Because the plaintiff in Radinsky was a pedestrian and not an invitee, the present case could arguably be distinguished from Radinsky upon that ground. We note, however, that the language italicized above from the court's opinion in Radinsky was broad enough to reach this case—the court spoke of injured third persons, and not merely of injured pedestrians—and its reasoning appears to apply to pedestrians and invitees alike. Accordingly, although the question whether a customer of a store was protected by the snow removal law was not before the court in Radinsky, the decision in that case would evidently have been the same even if the plaintiff had been a customer, rather than a pedestrian.⁴

Ms. Albertie relies on Reichman v. Franklin Simon Corp., 392 A.2d 9 (D.C.1978), but notwithstanding the presence of troublesome dictum in that opinion, the decision does not support reversal. In Reichman, a pedestrian was injured as a result of a fall on an icy sidewalk adjacent to the defendant's store. She sued the store owner for damages pursuant to the provisions of the snow removal statute. In affirming an order granting summary judgment in favor of the defendant, the court stated:

District of Columbia law unquestionably requires a property owner to clear abutting sidewalks. However, a real property owner is under no duty to keep the sidewalk abutting its property clear of snow and ice for the benefit of pedestrians, except as to invitees, a status which appellant Helene Reichman does not claim. Robinson v. Park Central Apartments, 248 F.Supp. 632, 634 (D.D.C.1965). See Radinsky v. Ellis, 83 U.S.App.D.C. 172, 173, 167 F.2d 745, 746 (1948).

Id. at 13-14 (emphasis added; footnote omitted).

Ms. Albertie seizes on the emphasized words in the foregoing passage, but the language in question was not a part of the court's holding. As the court itself noted in Reichman, the plaintiff in that case was a pedestrian, not an invitee. The question whether an invitee could recover in some hypothetical situation was therefore not before the court. The brief remark in the opinion concerning that issue constituted "a statement not addressed to the question before the court or necessary for its decision." United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988) (quoting American Family Mut. Ins. Co. v. Shannon, 120 Wis.2d 560, 356 N.W.2d...