Acosta v. City of Santa Fe
| Decision Date | 18 August 2000 |
| Docket Number | No. 20,332.,20,332. |
| Parties | Kathryn ACOSTA, Plaintiff-Appellant, v. The CITY OF SANTA FE, Defendant, and Wirtco, Inc., Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Paul Mannick, Coppler & Mannick, P.C., Santa Fe, NM, for Appellant.
Scott Hatcher, Kristin Mckeever, Hatcher, Sullivan & Grand, P.A., Santa Fe, NM, for Appellee.
Certiorari Denied, No. 26,558, October 11, 2000.
{1} Kathryn Acosta (Pedestrian) appeals the trial court's decision to dismiss her "trip and fall" tort claims against Wirtco, Inc. (the Store). Pedestrian sued the Store and the City of Santa Fe for damages after she tripped and broke her elbow on a public sidewalk abutting the Store's property. Pedestrian's complaint against the City is typical—she requested damages from the City because it owns the sidewalk upon which she tripped. However, Pedestrian's complaint against the Store raises an issue of first impression because she alleges, among other things, that the Store is liable for her damages on the ground that it violated city ordinances requiring it to keep the sidewalk in a safe condition. Pedestrian recovered from the City; however, she was denied the opportunity to recover from the Store because the trial court dismissed her claims against the Store.
{2} On appeal, Pedestrian claims the trial court erred when it dismissed her tort claims against the Store. Pedestrian raises three issues: (1) whether the Store incurred tort liability on the ground that it allegedly failed to inspect, maintain, and repair the public sidewalk abutting its property, as required by a city ordinance; (2) whether the Store incurred tort liability on the ground that it allegedly exercised control over the public sidewalk upon which Pedestrian tripped; and (3) whether the Store incurred tort liability on the ground that it allegedly created or helped create the hazard posed by the uneven section of the public sidewalk abutting its property. For the reasons stated in this opinion, we affirm.
{3} Pedestrian was walking on a public sidewalk in front of a building owned by the Store, when she tripped and fell. The section of the sidewalk that she tripped upon was cracked, uplifted, and uneven. Pedestrian broke her elbow and suffered other injuries as a result of her fall. Pedestrian believed that both the Store and the City were responsible for her accident, so she sued them for damages.
{4} Pedestrian sued the City because it owns the sidewalk upon which she tripped. Pedestrian also sued the Store even though it does not own the public sidewalk. She sought to impose tort liability upon the Store pursuant to a negligence per se theory and two common law theories (control and creation of a danger) that impose off-premises tort liability upon property owners when certain conditions are satisfied. Pedestrian's suit against the City is not at issue in this appeal, so we limit our discussion to the Store's alleged liability. Before addressing the legal issues presented by this appeal, we first set forth the procedural background underlying Pedestrian's claims.
{5} Pedestrian first claimed that the Store was liable because it violated Santa Fe City Code Ordinances. Ordinance 14-93.8 provides:
14-93.8 Maintenance of Public Parkways. Maintenance of the public parkway, including the utility corridor and the sidewalk, shall be the responsibility of the person owning or in charge or control of any lot or property contiguous to the parkway exclusive of controlled access arterials. Maintenance shall be for the purpose of elimination of public nuisances and for insuring pedestrian and vehicular safety and visibility, and shall include, but not be limited to, weed eradication and trimming of trees and shrubs.
Ordinance 23-1.6 provides:
{6} Pedestrian asserted that Ordinance 23-1.6 imposes an affirmative duty upon abutting property owners like the Store to inspect, maintain, and repair public sidewalks. She then argued that the Store's alleged failure to fulfill these affirmative duties rendered the Store negligent per se.
{7} The Store filed a motion for summary judgment on this claim, which the trial court denied. The Store subsequently moved the trial court to reconsider its decision. In support for its motion, the Store contended that Ordinance 23-1.6 does not establish a duty to pedestrians, but rather operates for the benefit of the City. The Store claimed that another city ordinance, Santa Fe City Code Ordinance 23-1.7, establishes the limited circumstances under which an abutting property owner can be held liable for injuries sustained by pedestrians. This ordinance states in relevant part:
If, within twenty (20) days of the receipt of the final order, the owner of the tract or parcel of land which is contiguous to the sidewalk fails to repair, improve or reconstruct the sidewalk as required in the notice, the owner of the tract or parcel of land contiguous to the sidewalk is liable for any injury received by any person which injury is proximately caused by the negligence of such owner pertaining to such faulty repair, construction or maintenance of the sidewalk, and the municipality is not liable.
{8} The Store asserted that Ordinance 23-1.7 sets forth certain due process requirements that must be satisfied before the City can impose tort liability upon an abutting property owner. The Store argued that it was therefore entitled to summary judgment because it was undisputed at trial that the due process requirements had not been fulfilled. {9} Upon reconsideration, the trial court determined that the Store could not be held liable for pedestrian injuries unless the notice procedures set forth in Ordinance 23-1.7 had been followed. Pedestrian did not contend that the notice procedures had been satisfied, so the trial court granted the Store's motion for summary judgment.
{10} Pedestrian next claimed that the Store was liable for her damages under our common law because it exercised control over the sidewalk. Pedestrian asserted that in addition to pulling weeds and clearing ice and snow on the sidewalk, the Store once removed a section of the public sidewalk in order to repair a leaking water pipe without asking for or receiving the City's permission. According to Pedestrian, the Store's actions demonstrated its control and authority over the sidewalk. Pedestrian argued that the Store's assumption of control over the sidewalk made it liable for her damages because it permitted the dangerous condition on the sidewalk to persist.
{11} The Store filed a motion for summary judgment on this claim. The Store contended that pulling weeds and clearing ice and snow did not exhibit an exercise of control because it was obligated to do those things by the city ordinances. The Store further contended that the single act of removing another section of the sidewalk for the limited purpose of repairing a water pipe did not amount to an exercise of control for purposes of tort liability.
{12} The trial court initially denied the Store's motion for summary judgment. However, upon reconsideration, the trial court determined that the Store's actions simply did not demonstrate control sufficient to create a duty to inspect, maintain, and repair the sidewalk for purposes of tort liability. The trial court then granted the Store's motion for summary judgment.
{13} Pedestrian ultimately claimed that the Store was liable for her damages under our common law because it created or helped create the discrepancy in the public sidewalk on which she tripped. In support of her claim, Pedestrian asserted that the Store had experienced a substantial water leak in one of its underground water pipes prior to the occurrence of her accident. She argued that the water leak caused a section of the sidewalk to settle, leaving the sidewalk uneven, and that the sidewalk's unevenness was a danger to pedestrians.
{14} The Store moved for a directed verdict on this claim at the close of Pedestrian's case in chief. The Store argued that Pedestrian had failed to present evidence that would create a reasonable inference that the Store's water leak had contributed in any way to the discrepancy in the section of the public sidewalk upon which she tripped. The trial court agreed with the Store and granted its motion for a directed verdict.
{15} The first issue we address is whether the Store incurred tort liability by allegedly violating Ordinance 23-1.6 (the ordinance). Ordinance 14-93.8 appears to be a general ordinance applying to public parkways, and not the specific ordinance applying to sidewalks. We therefore do not think that this ordinance applies to the Store. In...
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