Bittle v. Brunetti

• Decision Date: 08 February 1988
• Docket Number: No. 85SC476,85SC476
• Parties: Joseph W. BITTLE, Petitioner, v. Anthony G. BRUNETTI, Anthony C. Streno, Frank Capra, Don Eafanti, Jim Duca, Mike Musso, Delbert T. Dardano, Andy Figliolino, Jim Martelli and Robert L. DeRose, individually and doing business as Primo Investments; and John Does I through V, whose true names are unknown, Respondents.
• Court: Colorado Supreme Court

Page 49

750 P.2d 49

Joseph W. BITTLE, Petitioner, v. Anthony G. BRUNETTI, Anthony C. Streno, Frank Capra, Don Eafanti, Jim Duca, Mike Musso, Delbert T. Dardano, Andy Figliolino, Jim Martelli and Robert L. DeRose, individually and doing business as Primo Investments; and John Does I through V, whose true names are unknown, Respondents.

No. 85SC476.

Supreme Court of Colorado En Banc.

Feb. 8, 1988.

Francis V. Cristiano, Bartholomew and Cristiano, Denver, for petitioner.

Laird Campbell, Marilyn C. Fox, Anderson, Campbell and Laugesen, P.C., Denver, for respondents.

Marc J. Kaplan, Bennett S. Aisenberg, Denver, for amicus curiae Colorado Trial Lawyers Ass'n.

MULLARKEY, Justice.

In this negligence action, the plaintiff alleged that the defendants' failure to shovel the sidewalk abutting their property had caused him to fall and injure himself. The trial court concluded that there was no issue of material fact and that, as a matter of law, the defendants owed the plaintiff no duty to remove the snow and ice from the public sidewalk abutting their property. Accordingly, the court granted the defendants' motion for summary judgment. The court of appeals affirmed, 712 P.2d 1112. We granted the plaintiff's petition for certiorari to review two issues: (1) whether commercial property owners have a legal duty to take reasonable measures to remove in a timely manner natural accumulations of snow and ice from public sidewalks abutting their property; and (2) whether violation of a municipal ordinance requiring owners and occupants of property to clear snow and ice from adjacent sidewalks within a reasonable time after a snowstorm gives rise to civil liability under the doctrine of negligence per se. We hold that property owners have no common law duty to shovel the public sidewalks abutting their property and that the municipal ordinance in question did not give rise to civil liability under the doctrine of negligence per se. Accordingly, we affirm the court of appeals.

I.

On March 4, 1981, at approximately ten o'clock in the morning, the plaintiff, Joseph W. Bittle, was walking on a public sidewalk in front of the commercial property owned by the defendants. ¹ The City and County of Denver (the City) owned the public sidewalk. The defendants, their tenants, and the City each had failed to make any effort to remove the snow and ice from the sidewalk after the most recent snowfall. Bittle slipped on a coating of snow and ice and fell, injuring himself. He alleged that as a result of the fall, he incurred over $7,000 in actual expenses and lost earnings, as well as $100,000 in pain and suffering and future expenses.

The plaintiff contended that the defendants had a common law duty to maintain the sidewalks abutting their property in a reasonably safe condition. Based on an ordinance which required the defendants to remove snow and ice from the public sidewalks adjoining their property immediately after every snowfall, he also argued that the defendants were liable under the doctrine of negligence per se. The defendants responded that the municipality, rather than the abutting property owner, had the primary duty to keep the public sidewalks in reasonably safe condition. The defendants also argued that the ordinance cited by the plaintiff did not impose a duty to the plaintiff on the defendants. Citing this court's prior decisions, both the trial court and the court of appeals concluded that the defendants had no duty to the plaintiff, either under the doctrine of negligence per se or under the common law. See Kanter v. City & County of Denver, 153 Colo. 389, 386 P.2d 349 (1963); W.T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881 (1948).

II.

We first consider the question of whether commercial property owners have a legal duty under the common law to keep the public sidewalks abutting their property reasonably clear of natural accumulations of snow and ice. The plaintiff makes a two-pronged attack on the lower courts' decisions on this question. First, he attempts to distinguish W.T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881 (1948) (Grant ); second, he contends that we should overrule it.

A.

In Grant, we decided that, under the common law, the abutting property owner had no duty to keep public sidewalks reasonably free of snow and ice. Bittle argues that Grant does not apply to his complaint because in Grant the abutting property owner had used reasonable care. 117 Colo. at 409, 188 P.2d at 883. In the case now before us, the defendants made no effort to remove the snow and ice from the sidewalk. However, our decision in Grant was not based on the fact that the abutting property owner had taken appropriate measures to make the sidewalk safe. Instead, we concluded that the common law did not create a duty of property owners to third parties. 117 Colo. at 410-12, 188 P.2d at 883-84.

In addition, the Grant rationale has since been applied in a variety of circumstances, making it clear that under Colorado's common law, property owners owe no duty to pedestrians to keep the sidewalks abutting their property reasonably clear of naturally accumulating snow and ice. ² The "no duty" rule is firmly embedded in Colorado's jurisprudence and is not limited to the exact fact pattern in Grant.

B.

The no duty rule is the common law rule in the majority of jurisdictions. See generally Annotation, Liability of abutting owner or occupant for condition of sidewalk, 88 A.L.R.2d 331 (1963 & Supps. 1979 & 1987) (especially cases collected in sections 3 and 19); 6 E. McQuillin, The Law of Municipal Corporations § 22.12 (3d ed. rev. vol. 1980) ("failure of the abutting property owner to remove snow, which has fallen on the sidewalk, has never been recognized as a ground of action for damages for resulting injuries at common law"). Only two states, New Jersey and Pennsylvania, have taken a contrary view. See Mirza v. Filmore Corp., 92 N.J. 390, 456 A.2d 518, 521 (1983); Hambright v. Yglesias, 200 N.J.Super. 392, 491 A.2d 768 (App.Div.1985); see also Starr v. Philadelphia Transp. Co., 191 Pa.Super. 559, 159 A.2d 10 (1960). ³ As one commentator has stated, the cases following the no duty rule "are numerous and well established and will not be overthrown lightly." Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21, 26 (1949). Colorado's no duty rule is consistent with the overwhelming majority view.

C.

Our common law no duty rule is also consistent with our general tort law in three important respects. First, we always have recognized the importance of ownership in determining an individual's responsibilities.

The question of whether a duty exists is a question of law, requiring consideration of a variety of factors. See Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986); Jefferson County School Dist. R-1 v. Justus, 725 P.2d 767, 769 (Colo.1986). The defendants' ownership, possession, and control are clearly relevant to the existence of a special relationship on which a duty can be based. See, e.g., University of Denver v. Whitlock, 744 P.2d 54, 62 (Colo.1987) (lessor which had only "minimal" control over lessee's use of premises did not have duty "to take affirmative action to assure that recreational equipment such as a trampoline [was] not used under unsafe conditions"). Compare Cool v. Vesey, 31 Colo.App. 1, 499 P.2d 642 (1972) (since property owner owned stop box--vertical pipe containing shut-off valve for water--located on public "parkway" between curb and sidewalk, he was liable for injuries caused by its negligent maintenance) and Gray v. Turner, 142 Colo. 340, 350 P.2d 1043 (1960) (owners and lessees could be liable for injuries sustained as result of fall on snowy sidewalk located on private property) with Grant, 117 Colo. 405, 188 P.2d 881 (city, not abutter, is primarily liable for injuries caused by failure to remove snow from public sidewalks).

The plaintiff correctly notes that we have imposed a duty on owners of property to act reasonably in light of the foreseeability of injury occurring on their property. See Mile High Fence Co. v. Radovich, 175 Colo. 537, 547-48, 489 P.2d 308, 314 (1971); Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967); Gray, 142 Colo. 340, 350 P.2d 1043; King Soopers, Inc. v. Mitchell, 140 Colo. 119, 124-25, 342 P.2d 1006, 1009 (1959). In King Soopers, the plaintiff alleged that he was returning to his car after buying groceries in the defendant's store when he fell down on the defendant's icy parking lot. We explained that "the landowner, in discharging his duty to a business visitor, is obligated to exercise reasonable care to discover perils," 140 Colo. at 124, 342 P.2d at 1009 (emphasis in original), and that the owner must either make the conditions safe or give a warning. In Mile High Fence Co., the plaintiff was walking down an alley adjacent to the defendant's property after dark and he stepped into a post hole which the defendant had dug on private property. We concluded that the defendant had not acted reasonably and therefore affirmed the trial court's judgment in favor of the plaintiff.

These cases, as well as Palmer Park Gardens, 162 Colo. 178, 425 P.2d 268 (landowner liable when tenant's guest sustained injuries after falling in owner's snowy parking lot), and Gray, 142 Colo. 340, 350 P.2d 1043, show that people can be held liable for not taking reasonable measures to remove snow and ice from their own property. However, none of these cases imposes liability on a private property owner for injuries incurred on public property. Accordingly, contrary to the plaintiff's assertions, they do not require the conclusion that the defendants had a duty to the plaintiff to clear the public sidewalk on which Bittle fell. ⁴

Second, absent a special relationship between a plaintiff and a defendant, we will not impose a duty on the defendant to take affirmative measures to prevent a harm to the plaintiff. See,...