District of Columbia v. Texaco, Inc.

• Decision Date: 30 August 1974
• Docket Number: No. 7879.,7879.
• Citation: 324 A.2d 690
• Parties: DISTRICT OF COLUMBIA, a municipal corporation, Appellant, v. TEXACO, INC., a Delaware corporation, and Vernon Winn, Appellees.
• Court: D.C. Court of Appeals

324 A.2d 690

DISTRICT OF COLUMBIA, a municipal corporation, Appellant, v. TEXACO, INC., a Delaware corporation, and Vernon Winn, Appellees.

No. 7879.

District of Columbia Court of Appeals.

Argued June 12, 1974.

Decided August 30, 1974.

Rehearing and Rehearing en Banc Denied November 21, 1974.

David P. Sutton, Asst. Corp. Counsel, Washington, D.C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellant.

William A. Appler, Washington, D.C., with whom Lawrence E. Carr, Jr., Washington, D.C., was on the brief, for appellee Texaco, Inc.

Hugh E. Donovan, Rockville, Md., for appellee Winn.

Before KELLY, FICKLING and KERN, Associate Judges.

FICKLING, Associate Judge:

On February 3, 1964, a pedestrian fell and injured herself because of a defective sidewalk which crossed the driveway entrance of appellees' Texaco gasoline station. The District of Columbia (hereinafter, District) was the only party sued by the pedestrian and was held liable in the amount of $18,500. Thereafter, the District brought this action against appellees seeking indemnification for the judgment paid. The trial court, sitting without a jury, entered judgment in favor of appellees. This appeal followed.

The evidence adduced at trial can be summarized in part as follows: The sidewalk in front of appellees' service station was built in 1928; the driveway entrance, crossing a portion of the sidewalk in question, was built in 1928-29. No repairs had been made on the sidewalk from the date of its construction to the date of the accident. The driveway, however, had been repaired by Texaco in 1940. At the time of the accident, the sidewalk portion of the driveway was in a cracked and chipped condition. In contrast, the sidewalk outside the driveway was relatively free from defects. There was extensive vehicular use of the driveway; more than 100 vehicles a day used that entrance of the service station in order to do business with appellees. In addition, large fuel trucks used the driveway entrance from one to three times a week in making gasoline deliveries to the station.

The trial court, in a written opinion, correctly recognized the rule "that when the abutter makes . . . a `special use' of the [public] walk, and there is a recovery against the municipality because of a defect in the walk, the municipality has the right to seek indemnity from the abutter as the person primarily liable." Hecht Co. v. District of Columbia, D.C.Mun.App., 139 A.2d 857, 862 (1958); see Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712 (1896). See also Prosser, Torts 312 (1970 ed.). However, the trial court held that use of a sidewalk as part of a driveway for commercial purposes by appellees did not constitute a "special use"; therefore, the District was not entitled to indemnification from appellees. In our opinion the trial court erred in so holding.

It is well settled that where an abutter makes a "special use" of the sidewalk, he owes a duty to the public to maintain the sidewalk in a reasonably safe condition and may be held liable for injuries resulting from an unsafe or dangerous condition created by such "special use" of the sidewalk. Merriam v. Anacostia National Bank, 101 U.S.App.D.C. 190, 247 F. 2d 596 (1957). See also 19 McQuillin, Municipal Corporations § 54.42(d) (1967); Annot., 88 A.L.R.2d 380-89 (1963). In Merriam, supra, the court held that the abutter (a bank) made a "special use" of the sidewalk, giving rise to potential liability. In that case, a pedestrian was injured as a result of a fall on a defective sidewalk adjacent to the abutter's property on which a general contractor was constructing a new building. The dangerous condition was created by the trucks of the subcontractor — which used the sidewalk as a driveway — thereby causing the breakup of the sidewalk. The court in Merriam said:

[N]either of the appellees could stand by knowing a dangerous condition was being created on the public sidewalk in furtherance of their respective private and special interests and be free from liability if they did nothing to protect the public from such danger. "That part [of the public...