Clark v. Stoudt
| Citation | 12 N.W.2d 708,73 N.D. 165 |
| Decision Date | 15 January 1944 |
| Docket Number | 6911. |
| Parties | CLARK v. STOUDT. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The duty of keeping the sidewalks of a city free from ice and snow is upon the municipality itself.
2. At common law, neither the owner nor the occupant of premises abutting on the sidewalk is liable for injuries caused by the natural accumulation of snow or ice thereon.
3. A city ordinance which requires the occupant of property abutting on a street to keep the sidewalk in front of his place free from ice and snow, and which provides a penalty for failure so to do, is merely a method which the municipality adopts to compel the said occupant to assist it in performing its municipal duty.
4. Owners and occupants of property are not liable to a pedestrian for injuries resulting from a fall caused by slipping on snow and ice which, due to natural weather conditions, accumulated on the sidewalk in front of the property, notwithstanding an ordinance penalizing failure to remove such snow and ice.
Fredricks & Fredricks, of Jamestown, for plaintiff and appellant.
Chase & Buck and Rittgers & Hjellum, all of Jamestown, for defendant and respondent.
The defendant was the occupant of and had control over a certain lot in the city of Jamestown. While the plaintiff was walking on the sidewalk in front of the lot, "she slipped and fell upon the ice-covered walk immediately in front and west of the defendant's place of business." Plaintiff alleges the said lot and sidewalk were rendered dangerous and unsafe for pedestrians and the public use because of its ice-covered condition, "which said icy condition had been wrongfully, carelessly and negligently been permitted to accumulate and exist by the defendant as the occupant of the premises fronting thereon, and that such icy, slippery and dangerous condition of said sidewalk, in front of said place of business aforesaid, was the sole and proximate cause of the plaintiff's slipping and falling thereon, and that in so falling and slipping the plaintiff sustained a severe injury."
Plaintiff sets forth Sec. 22, Chap. 18, of the Ordinances of the City of Jamestown, which provides:
In addition plaintiff sets forth Sec. 32 of the same chapter, as follows
Plaintiff claims that this icy condition had existed for several days "and that at the time the plaintiff fell *** there was no snowstorm in progress in said city and it was not Sunday ***." Further, that immediately after the injury the defendant scattered sand and gravel on the sidewalk to make it safe for public travel.
The answer denies liability and alleges, among other things, that the accident was caused by the negligence of the plaintiff.
The case was tried to the court without a jury. The court found for the defendant and dismissed the action.
The plaintiff appeals and states in her brief that the validity of the judgment entered "depends on the question of the effect of the failure to comply with the duty prescribed by the city ordinance, on the part of the defendant, which failure of duty resulted in the injury and damage complained of and claimed in this action; or whether an action against an abutting possessor of property may be maintained, for injuries sustained on account of such abutting possessor's failure of duty prescribed by a lawful city ordinance."
The sole issue, therefore, is this: Assuming the defendant failed to remove the snow and ice, does this failure to comply with the mandate of the ordinance make him liable for the injury suffered by plaintiff and caused by the icy condition said to exist?
In determining this question, we are not unmindful that the trial court found there was no proof the defendant had any knowledge of the icy condition of the sidewalk at the time of the accident. We are not considering this factor, for plaintiff's case rests fundamentally upon her contention that her action is based solely upon the failure of the defendant to comply with this ordinance and that therefore the knowledge or want of knowledge on the part of the defendant is immaterial.
Under the provisions of subd. 14, Sec. 3599, Comp.Laws, a city has the power "to require the owner or occupant of any premises to keep the sidewalks in front of or along the same, free from snow or other obstruction." Under the provisions of sub. 78 of the same section, the city has the power to pass all ordinances necessary to carry such a power into effect and prescribe such fine or penalty which it deems proper within the limits prescribed by the statute. Because of this, appellant says that failure of the defendant to comply with the ordinance gives her a right of action against the defendant. She urges that the ordinance imposed a positive duty upon the defendant, that this ordinance was for the benefit of the city in its governmental capacity, and to guard the safety of pedestrians; that the failure to comply with the ordinance constitutes a breach of duty which amounts in law to a tort.
There is no claim that this sidewalk was on the property occupied by the defendant. It was on the street in front of his place. While there have been legislative enactments from time to time affecting the liability of municipalities for permitting dangerous conditions of sidewalks, so as to mitigate the effects of this responsibility by requiring proof of knowledge on the part of the officers as to the condition, etc., this state has never departed from the fundamental doctrine of the responsibility of the municipality for the condition which may exist because of the accumulation of snow and ice, etc.
The responsibility is that of the city, though the injured party may be required to bring himself within the legislative decree as to knowledge and proof of negligence on the part of the officials so as to distinguish the situation from that of an unavoidable accident.
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