Barniak v. Grossman

• Citation: 93 S.E.2d 49,141 W.Va. 760
• Decision Date: 29 May 1956
• Docket Number: No. 829,829
• Parties: Mary BARNIAK v. Charles GROSSMAN, d/b/a Grossman Jewelry Company, et al. C. C.
• Court: Supreme Court of West Virginia

Page 49

93 S.E.2d 49

141 W.Va. 760

Mary BARNIAK v. Charles GROSSMAN, d/b/a Grossman Jewelry Company, et al.

C. C. No. 829.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 1956.

Decided May 29, 1956.

Syllabus by the Court.

1. Under a valid municipal ordinance by which the tenant of premises is required to remove snow and ice from a sidewalk on which his premises front, he is not liable for injuries caused by a pedestrian slipping on ice on a sidewalk which is lengthwise and alongside the premises of the tenant and to which he has no direct access by door or otherwise.

2. The owner of a building who uses and occupies one or more rooms on an upper floor of the building as an office and principal place of business, having access thereto by door and stairway from the sidewalk, is liable under a valid municipal ordinance to a pedestrian who is injured by falling on the sidewalk from which such owner and occupier has not cleared the snow and ice, as required by such ordinance.

3. A city which is authorized and required by its charter to keep in repair public sidewalks is, within the meaning of Chapter 40, Article X, Section 17, Acts of the Legislature, 1933, First Ex.Session and Section 1, Chapter 89, Acts of the Legislature, 1949, Regular Session, liable for damages to a pedestrian occasioned by the slippery condition of the sidewalk when such sidewalk is obstructed by an accumulation of snow and ice so as to render it out of repair and unsafe for travel in the usual mode with ordinary care by day or night.

Frank J. DePond, George M. Amos, Jr., Fairmont, for plaintiff.

Furbee & Hardesty, Herschel Rose, Fairmont, for defendants.

LOVINS, Judge.

Mary Barniak, plaintiff, brought this action against the defendants, Charles Grossman, doing business as Grossman Jewelry Company, The Union Realty Company, a corporation, and The City of Fairmont, a municipal corporation. The object of the action is to recover damages for injuries suffered by the plaintiff when she fell on a sidewalk abutting Meredith Street, sometimes called Porter Alley, near the intersection of that street with Jefferson Street, in the City of Fairmont, Marion County, West Virginia, at 11:55 A.M., or shortly thereafter, on February 14, 1955. The defendants filed separate demurrers to the declaration. The demurrers of The City of Fairmont and The Union Realty Company were overruled. The demurrer of Charles Grossman was sustained. A summary of the points of law arising on such demurrers is as follows: Does the declaration state a cause of action against the three defendants or either of them?

The declaration alleges a heavy fall of snow occurred during the night of February 13th and 14th, 1955, causing ice to form upon the sidewalk abutting and along a paved street on the side of the building, which rendered the sidewalk dangerous, obstructed it and caused it to be out of repair at the time of plaintiff's fall. The corner storeroom on the first floor of the building was occupied by Grossman as a tenant. The Union Realty Company, owner, has as its principal place of business, a room or rooms on an upper floor and rented portions of the upper floors to other tenants.

The defendant, The City of Fairmont, by the provisions of its charter and by statutes of general application, is required to keep the sidewalks in repair and free from obstruction, and the defendants, tenant and owner, by valid municipal ordinance then in force and effect, were required to remove and clear snow and ice from sidewalks fronting the premises used, owned or occupied by them within a specified time after the snow fell. In the event such snow-fall occurred between 6 o'clock in the evening and 6 o'clock in the morning, such snow and ice should be removed before eleven o'clock the following morning.

The owner and tenant are required by such ordinance to keep the gutters along sidewalk front, side and rear of the building free of debris, ice and snow.

The tenant and owner failed to comply with the provisions of the ordinance, and the city failed to remove the obstruction caused by snow and ice from the sidewalk.

The plaintiff, without fault upon her part, and while reghtfully walking along the sidewalk on February 14, 1955, as a result of the failure of the defendants to perform the duties imposed upon them by the ordinance, slipped and fell, sustaining serious and permanent personal injuries.

Under the common law, no duty devolves upon an owner to keep the sidewalk adjacent to his property in a safe condition. Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499; Hanley v. Fireproof Bldg. Co., 107 Neb. 544, 186 N.W. 534, 24 A.L.R. 382. But it is the general rule that the owner of real property who causes an artificial discharge or accumulation of water upon a public sidewalk or roadway which freezes, making the use of such sidewalk or roadway dangerous, may be held liable. See Annotation 22 A.L.R.2d 738.

The position of plaintiff is that the word 'fronting' as used in the ordinance of the City of Fairmont should be interpreted as having the meaning or be interchangeable with the word 'abutting'; that to interpret this word 'fronting' otherwise would restrict the protection afforded the public to a cleared space of undefined area at or near occupied fronts and thus leave the side of any business premise obstructed by dangerous accumulation of ice and snow; that the language of the ordinance refers in the plural to pavements and sidewalks and it would appear the intention of the lawmakers was thus to include sidewalks situate along or abutting any paved street or alley adjacent to a building; that the sidewalks along the side of this building were constructed for the use of the public generally as a facility in reaching the premises of the occupant; that actually corner property has two fronts, that upon which it faces, and that upon which the building abuts; and that the defendant Grossman's duty extends to clearing the sidewalk in front, as well as alongside the building.

It is the contention of the defendant Grossman that the ordinance of the City of Fairmont (1) does not compel him to remove snow and ice from the sidewalk or an alleyway running along the side of defendant's storeroom, (2) that his alleged failure to keep the gutter between the pavement and the sidewalk situate at the side of defendant's storeroom free from snow and ice does not constitute negligence on which action may be maintained against him.

The position of The Union Realty Company is that the lower court should have sustained its demurrer to the plaintiff's declaration, for the reason that the premises adjacent to where the injury occurred are occupied by the defendant Charles Grossman, since he is the occupier of the street level portion of the building; that there was no duty at common law upon the owner of the building, and any duty placed upon him is the result of an ordinance, and since Grossman was the lessee and occupier of the lower floor of the building, it is immaterial that The Union Realty Company occupied offices on the second or third floor; and to hold otherwise would be to hold each tenant in the building responsible for injuries received from slippery sidewalks.

The decision of the questions certified turns on the construction and application of a valid ordinance of the City of Fairmont, the charter of such City and the general law relating to the duties of municipalities in keeping the streets under their control in repair and free of obstructions and defects. This Court will not take judicial notice of an ordinance of a municipality. Such ordinance must be proved unless otherwise directed by statute. Boyland v. City of Parkersburg, 78 W.Va. 749, 90 S.E. 347; Rich v. Rosenshine, supra.

The plaintiff does not quote the ordinance in full but does quote the pertinent portion of the ordinance on which she relies for recovery as against the defendants Grossman and The Union Realty Company.

The municipal ordinance above mentioned is applicable to the defendants Grossman and The Union Realty Company. As hereinabove indicated, the ordinance makes it the duty of a tenant in a building to remove and clear ice and snow from sidewalks fronting their premises within a specified time after snow falls. The defendant Grossman is the tenant of a part of the building and the front entrance to his place of business is on Jefferson Street, extending lengthwise of Meredith Street. The plaintiff suffered her injuries from a fall caused by ice on the sidewalk on Meredith Street.

The Union Realty Company, a corporation, the owner of the building, designates such building as its principal place of business and occupies one or more rooms on an upper floor, with access thereto being had by a door and stairway extending upward from Meredith Street.

The ordinance here in question was before this Court in the case of Rich v. Rosenshine, supra. It was there held that such ordinance should be strictly construed. Rosenshine, the tenant of the building was held liable for failing to remove snow and ice from the sidewalk in front of his premises. The owner of the building was discharged from liability because he did not occupy the building or any part thereof. The City of Fairmont was held liable for the reasons hereinafter stated.

The ordinance here considered is not contrary to our constitution. Rich v. Rosenshine, supra; Hayes v. Town of Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726, 156 A.L.R. 702. See also 25 Am.Jur., 378, Highways, § 65 and ...