Dunn v. JP Stevens & Co.
| Decision Date | 06 December 1951 |
| Docket Number | No. 96,Docket 22131.,96 |
| Citation | 192 F.2d 854 |
| Parties | DUNN v. J. P. STEVENS & CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Jay E. Rubinow, Manchester, Conn., for plaintiff-appellant.
Davis, Lee, Howard & Wright, P. Corbin Kohn, and Douglass B. Wright, all of Hartford, Conn., for defendant-appellee.
Before SWAN, Chief Judge, FRANK, Circuit Judge, and COXE, District Judge.
This is a personal injury action commenced in a state court and removed to the federal court on the ground of diverse citizenship. Upon the pleadings (complaint and answer) the defendant moved for summary judgment. The motion was granted, and from the resulting judgment the plaintiff has appealed.
The defendant is the owner of premises abutting upon a public sidewalk upon which the plaintiff was walking when she fell and sustained the injuries for which she sues. The complaint alleged that her fall was caused by the negligence of the defendant in that it (a) removed snow from the sidewalk in a manner to expose ice beneath the snow; (b) did not use due care in the manner in which it plowed the snow; (c) after the plowing did not cover the sidewalk with sand; (d) did not warn pedestrians of the danger or take other measures to protect them; (e) did not keep the sidewalk in a reasonably safe condition for use; (f) undertook to remove snow and ice from the sidewalk but neglected to exercise its undertaking in a proper manner; (g) "by not exercising due care in the manner in which it attempted the removal of snow and ice from the said sidewalk rendered the said sidewalk more slippery and dangerous than it would have been but for the aforesaid acts of the defendant." The answer alleged, as a first defense, that the complaint fails to state a claim upon which relief can be granted; as a second defense, denied the allegations of the complaint as to negligence; and as a third defense, pleaded contributory negligence on the part of the plaintiff. The defendant then moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground "that there is no genuine issue as to any material fact, and that the defendant is entitled to a judgment as a matter of law."
The motion was based "upon the pleadings," without supporting affidavits, but supporting affidavits are not necessarily required under Rule 56(b). See Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161. It would seem that the defendant might appropriately have moved for judgment on the pleadings under Rule 12(c), F.R.C.P. But since the moving party need not cite by their respective numbers the rules relied on when those rules are clearly indicated, Galdi v. Jones, 2 Cir., 141 F.2d 984, 992, the motion may properly be treated as attacking the complaint for failure to state a claim upon which relief can be granted.
The owner of land abutting on a public street is not liable to persons injured on the sidewalk by reason of natural accumulations of snow or ice. City of Hartford v. Talcott, 48 Conn. 525. This is true even though there exists a municipal ordinance, as there did in the case at bar, requiring abutters to remove snow and ice under penalty of a fine for failure so to do. Talcott case, supra, Willoughby v. New Haven, 123 Conn. 446, 197 A. 85. Consequently if the defendant had done nothing toward removing the snow, it would incur no liability to the plaintiff, even though it incurred liability to the city of Rockville for the fine imposed upon violators of the ordinance. Thus far the parties are in agreement as to the Connecticut law. But the plaintiff contends that when an abutting owner undertakes to plow the sidewalk, he assumes a duty to pedestrians to use reasonable care in the performance of his undertaking; and if he plows negligently, thereby rendering the sidewalk more dangerous, and if such negligence causes a user of the sidewalk to fall and sustain injuries, the person so injured may recover damages from the negligent abutter.
The district court rejected this contention, apparently construing the complaint as alleging that the defendant's negligence consisted only in removing the snow in such a manner as to expose a natural accumulation of ice which was allowed to remain uncovered by sand or other abrasive substance. If this were all that the complaint charged, it may well be that it failed to state a valid claim. Such appears to be the New York law. Connolly v. Bursch, 149 App.Div. 772, 134 N.Y.S. 141; Donovan v. Kane, 190 Misc. 473, 75 N.Y.S.2d 462. But we think the complaint is not subject to so narrow a construction. It alleged that the defendant "did not use due care in the manner in which it plowed" and that its negligence "in...
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Smith v. Town of Greenwich, 17555.
...to use reasonable care to keep premises in condition that will not endanger travelers in lawful use of highway); Dunn v. J.P. Stevens & Co., 192 F.2d 854, 855 (2d Cir.1951) ("[i]f it should be proved at the trial that the defendant piled the snow in ridges on the walk . . . in a manner to m......
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Rudd v. Lyceum Dramatic Productions
...a snow-removal law the abutting landowner is not civilly liable to third persons for violations thereof. See, e.g., Dunn v. J. P. Stevens & Co., 2 Cir., 192 F.2d 854, 855; Burke v. Columbia Lbr. Co., D.C.D.Alaska, 108 F.Supp. 743; Radinsky v. Ellis, 83 U.S.App.D.C. 172, 167 F.2d 745.6 See A......
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Herring v. Pepsi Cola Bottling Co.
...and may properly be treated as attacking a complaint for failure to state a claim upon which relief can be granted. Dunn v. J. P. Stevens & Co. (2 Cir.), 192 F.2d 854, 855; Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161. Where plaintiff's petition does not state a cause of action, a d......
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National Merchandising Corp. v. McAlpin, 8840
...judgment is sustained on the ground that the petition is insufficient, leave to amend should ordinarily be granted. Dunn v. J. P. Stevens & Co., 2 Cir., 192 F.2d 854, 856(6); 6 Moore, Federal Practice, § 56.11(2), pp. 2153--2154. For the reasons indicated, the judgment is reversed and the c......