Budahl v. Gordon and David Associates, 13541

• Decision Date: 25 August 1982
• Docket Number: No. 13541,13541
• Citation: 323 N.W.2d 853
• Parties: Deanna BUDAHL and Loren Budahl, Plaintiffs and Appellants, v. GORDON AND DAVID ASSOCIATES, A South Dakota Corporation, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 853

323 N.W.2d 853

Deanna BUDAHL and Loren Budahl, Plaintiffs and Appellants, v. GORDON AND DAVID ASSOCIATES, A South Dakota Corporation Defendant and Appellee.

No. 13541.

Supreme Court of South Dakota.

Argued March 23, 1982.

Decided Aug. 25, 1982.

Richard J. Helsper of McCann, Martin & Mickelson, P. C., Brookings, for plaintiffs and appellants; George S. Mickelson of McCann, Martin & Mickelson, P. C., Brookings, on brief.

Francis M. Smith of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

WOLLMAN, Chief Justice.

Appellant Deanna Budahl commenced an action to recover damages for personal injuries allegedly suffered after falling on ice on the sidewalk in front of a place of business owned by appellee in the city of Brookings. ¹ 1] Appellant Loren Budahl, Deanna's husband, brought an action for loss of consortium in connection with his wife's personal injury action. Appellants appeal from the judgment dismissing the action on appellee's motion for a directed verdict. We affirm in part, reverse in part and remand.

The first issue is whether the local ordinance that imposes a duty on the owner or occupant of property to keep abutting sidewalks free of ice and snow gives rise to a cause of action on the part of a pedestrian who is injured as a result of the failure of the owner or occupant to comply with the ordinance.

Brookings City Ordinance Sec. 33-72 requires abutting property owners and occupants to remove snow and ice from adjacent sidewalks. ² The penalty for failure to comply with this ordinance is stated in Sec. 33-73, which allows the city to remove the snow or ice "and assess the cost thereof against the fronting or abutting property."

The common law rule is that when the presence of ice and snow on a sidewalk abutting a structure is a result of natural accumulation, the responsibility to remove such accumulation falls on the municipality. This is so even when an ordinance requires abutting occupants to clear their sidewalks within a certain time after precipitation falls on the walk. Generally, such an ordinance is adopted as a method to compel the occupant of property abutting on a sidewalk to assist the governing body in performing its municipal duty. These general common law principles were summarized by the Supreme Court of North Dakota in Clark v. Stoudt, 73 N.D. 165, 12 N.W.2d 708, 710 (1944):

To assist the city in performing its duty with reference to control over the sidewalks, it has been common practice, sustained by legislative authority, to require the owner or occupants of the adjacent lots to keep the sidewalks clear from the accumulation of snow and ice and to provide a penalty for violation of the ordinance.

The responsibility of the occupant is to the municipality. The occupant has no duty toward a pedestrian in such a case as the one at bar.

This rule is stated in Restatement (Second) of Torts Sec. 288 (1965):

The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively

* * *

(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public ....

The official comment to clause (c) of Sec. 288 reads, at p. 32:

Other legislative enactments and administrative regulations are intended only for the purpose of imposing upon the actor the performance of a service which the state, or some subdivision of it, has undertaken to give to the public. They are intended to make the actor responsible to the state, rather than to any individual; and in this respect they are similar to ordinances assessing the cost of street improvements upon the owners of abutting land. Such a provision may be enacted as a part of the machinery by which a franchise is conferred upon a corporation to furnish water, transportation, or some other public service....

As an example of the general rule the authors of Restatement suggest a factual scenario similar to the one at issue:

Illustration:

5. A municipal ordinance provides that abutting property owners must repair defects in sidewalks and remove snow and ice from them, and that if they fail to do so they shall be liable to the city for the cost of the repairs or removal. The ordinance is construed to have no other purpose than to impose responsibility to the city. A, an abutting owner, fails to remove ice from the sidewalk. B slips on the ice and is injured. The ordinance does not provide a standard of conduct for the benefit of B.

Restatement (Second) of Torts, supra, at 32. We note that the majority of states adhere to the common law rule. See Annot., 82 A.L.R.2d 998 (1962); 39 Am.Jur.2d Highways, Streets, & Bridges Secs. 517, 518, pp. 918-20 (1968); 63 C.J.S. Municipal Corporations Sec. 862, p. 229 (1950).

Appellants ask us to abrogate the common law rule. We decline to do so. Rather, we hold that an owner or occupant of property is not liable to pedestrians for injuries resulting from a fall caused by the natural accumulation of snow and ice on a sidewalk in front of the property, notwithstanding the existence of an ordinance that imposes a duty upon the owner or occupant to remove the ice and snow and penalizes the failure to do so. ³

The next question is whether the trial court properly granted appellee's motion for directed verdict. In this case, the issue that is crucial to the motion for directed verdict is whether there was any credible evidence showing an unnatural or artificial accumulation of ice and snow on the sidewalk abutting appellee's premises. An abutting property owner or occupant is held liable only if he causes such an unnatural or artificial accumulation. Strandness v. Montgomery Ward, 199 N.W.2d 690 (N.D.1972). See generally, Annot., 18 A.L.R.3d 428 (1968).

"[A] motion [for a directed verdict] necessarily admits the truth of plaintiff's evidence and every inference of fact that may be legitimately drawn therefrom." Northwest Realty Company v. Perez, 81 S.D. 500, 504, 137 N.W.2d 345, 347 (1965).

When faced with a motion to direct, the trial court is not free to weigh the evidence or gauge the credibility of the witnesses. These are matters for the jury. He must accept that evidence which is most favorable to the party against whom the motion is sought, and indulge all legitimate inferences in his favor that can fairly be drawn therefrom.... If, when so viewed, there is any substantial evidence to sustain the cause of action or defense it must be submitted to the jury....

Myers v. Quenzer, 79 S.D. 248, 254, 110 N.W.2d 840, 843 (1961) (citations omitted). See also Stenholtz v. Modica, 264 N.W.2d 514 (S.D.1978).

Appellants offered the testimony of an employee of a business located next door to appellee's building. This witness testified that he was familiar with appellee's premises on a daily basis from the time of the first snowfall in December 1976 through the time of the accident in February 1977. He testified in part that:

Q. Would you describe in as much detail as possible to the jury exactly what you saw concerning the accident?

A. Well, I seen this lady, or ladies, come out of Stewarts, and when she was approximately halfway across the sidewalk, her feet went out from under her, and she slid and come down completely on her back on the sidewalk.

....

Q. At that particular time, did you have a chance to observe the sidewalk?

A. Yes.

Q. What did you observe?

A. That there was ice all over the sidewalk. The snow had covered it, but there was ice on the sidewalk.

Q. And was this compacted ice?

A. Yes.

Q. And concerning the building itself, did you ever see any water run off of the building?

A. There is some water that dripped over an overhanging that was on the building, yes.

Q. Where did that water run to then?

A. Onto the sidewalk.

Q. And did it freeze?

A. Yes.

After reviewing this evidence we cannot agree with the trial court's determination that appellants had failed to present substantial evidence from which the jury could have found that an unnatural or artificial accumulation of ice and snow existed on the sidewalk abutting appellee's property and that that accumulation was the proximate cause of Deanna Budahl's injuries. True, appellants might well have established with greater precision the location of the ice formed by the water that had dripped from the overhang, but the jury could fairly have inferred from the above-quoted testimony that the ice covered the sidewalk in the area where Mrs. Budahl slipped and fell. Accordingly, the trial court should have permitted the issue of appellee's liability for the condition caused by the dripping water to be decided by the jury. We therefore reverse the judgment to the extent that it denied appellants' claim of liability based upon this theory, and we remand the case to the circuit court for trial upon that issue. To the extent that the judgment was based upon the denial of appellants' claim of liability for violation of a general duty to remove ice and snow, it is affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur.

HENDERSON, J., concurs specially.

HENDERSON, Justice (specially concurring).

A fair reading of the trial testimony reveals credible evidence that there existed a jury question as to whether there was an unnatural or artificial accumulation of ice and snow on the sidewalk. Testimony introduced by the appellant reveals a dripping of water from an overhang onto the sidewalk and a freezing of this accumulation. Moreover, and most importantly, the neighbor of appellee testified that from December of 1976 through February of 1977 there was a failure to shovel the sidewalk, save for occasional scoops of snow by the steps, and no precautions were taken to avert injury such as ashes, sand, gravel, or salt being placed on the sidewalk at the situs of the freezing. This same witness testified that he informed appellee's...