Benson v. City of Tuscumbia
Decision Date | 27 October 1989 |
Citation | 553 So.2d 109 |
Parties | J.R. BENSON v. CITY OF TUSCUMBIA, et al. 88-1295. |
Court | Alabama Supreme Court |
Joey K. James of Bunch and Associates, Florence, for appellant.
Don G. DeCoudres, Birmingham, for appellee City of Tuscumbia.
Larry B. Moore of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees William M. Orman, d/b/a Cold Water Accents, and Mary Jo Orman, d/b/a Cold Water Accents.
Plaintiff, J.R. Benson, appeals a summary judgment entered for defendants, the City of Tuscumbia and William M. Orman and Mary Jo Orman, doing business as Cold Water Accents, in an action alleging negligent maintenance of a sidewalk.
The facts of this case are not in dispute. On January 9, 1988, the City of Tuscumbia was covered with snow and ice. Benson was in Tuscumbia to pick up his wife from work, and he parked approximately one block from where he was to meet her. He then walked down Fifth Street in a westerly direction to the corner of Fifth Street and Main Street. He passed Cold Water Accents, which had an old bathtub on the sidewalk in front of it. At the corner of Fifth Street and Main Street, Benson met his wife. They then proceeded in an easterly direction, retracing Benson's path on Fifth Street. As Benson passed Cold Water Accents, he lost his balance on the snow or ice and fell, striking the bathtub.
Benson alleged against the City of Tuscumbia negligent maintenance of the sidewalk and against the Ormans negligent maintenance of that portion of the sidewalk in front of Cold Water Accents. Specifically, Benson alleged that the defendants had negligently failed to clear the ice from the public sidewalk, so that it was not reasonably safe for walking. Benson amended his original complaint to allege that the City of Tuscumbia owed a duty to keep the public sidewalks reasonably clear for safe travel and that the city's failure to remove the bathtub from the sidewalk constituted a breach of that duty. After a hearing, the trial court granted defendants' motion for summary judgment.
On appeal, Benson argues that the trial court erred in concluding that the City of Tuscumbia and the Ormans did not have a duty to maintain the sidewalk that abuts Cold Water Accents in a reasonably safe manner and that the trial court erred in utilizing the doctrine of contributory negligence in entering summary judgment. Specifically, Benson argues only that the City of Tuscumbia and the Ormans were negligent in the placement of the tub on the sidewalk and in their failure to remove it. Benson makes no argument concerning the City of Tuscumbia's and/or the Ormans' duty to remove snow or ice from the sidewalk.
This action was commenced after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12.
A city's responsibility with respect to the maintenance of its streets and sidewalks has been set forth by this Court:
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Stephens v. City of Montgomery
...not adduced substantial evidence of the defect that caused Leal Stephens to trip and fall." The Stephenses appeal. In Benson v. City of Tuscumbia, 553 So.2d 109 (Ala.1989), we addressed a city's responsibility with respect to the maintenance of its streets and sidewalks: " 'In general terms......