Fitzwater v. Sunset Empire, Inc.

• Decision Date: 27 October 1972
• Citation: 263 Or. 276,502 P.2d 214
• Parties: David Hugh FITZWATER, Appellant, v. SUNSET EMPIRE, INC., an Oregon corporation, Respondent.
• Court: Oregon Supreme Court

Page 214

502 P.2d 214

263 Or. 276

David Hugh FITZWATER, Appellant, v. SUNSET EMPIRE, INC., an Oregon corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted April 3, 1972.

Decided Oct. 27, 1972.

Jeanyse R. Snow, Astoria, argued the cause for appellant. With her on the briefs were Harold A. Snow, and MacDonald, Dean, McCallister & Snow, Astoria.

Andrew W. Fink, Portland, argued the cause for respondent. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOWELL, Justice.

This is an action for personal injuries suffered by plaintiff when he slipped and fell on ice on the sidewalk in front of defendant's restaurant in the city of Astoria.

Plaintiff filed an original and three amended complaints. The defendant demurred to the first amended complaint for failure to state a cause of action. The demurrer was allowed. The plaintiff filed a second amended complaint, and the defendant moved to strike it on the ground that it was substantially the same as the amended complaint. The parties stipulated that plaintiff could file a third amended complaint and that defendant's previous motion to strike would apply to the third amended complaint. The third amended complaint was stricken on the grounds of no material change. A judgment was entered against plaintiff and plaintiff appeals.

The parties have treated the motion to strike the third amended complaint as if it were a demurrer for failure to state a cause of action. Plaintiff states that the issue is 'plaintiff's ability to state a cause of action under the facts.'

We shall approach the issues on the same basis--whether plaintiff's third amended complaint stated a cause of action.

Plaintiff's complaint contained two causes of action. The first cause of action was based on the theory of negligence. Plaintiff alleged that defendant operated a restaurant and

'(t)hat on and before December 28, 1968, an accumulation of snow and ice formed on the sidewalk bordering the front of defendant's premises. That on or about December 29, 1968 at approximately 6:00 o'clock p.m., plaintiff, after having been a customer in defendant's premises, and at the invitation of defendant's manager, and for the benefit of defendant, accompanied defendant's manager to the exterior sidewalk adjoining defendant's premises, and while walking on said sidewalk in front of and immediately adjacent to said premises, slipped and fell on an accumulation of ice and snow on said sidewalk, resulting in injuries to the plaintiff as hereinafter set forth.'

Plaintiff alleged negligence in allowing the ice and snow to accumulate, failing to remove same, failing to eliminate the slippery condition, and failing to warn.

Plaintiff's second cause of action was based on the theory of a public nuisance in that defendant failed to comply with a city ordinance requiring defendant to remove the ice and snow within a certain period after its accumulation, and that plaintiff suffered a particular injury.

In support of the negligence count, plaintiff contends that he was an invitee of defendant and if defendant's 'means of ingress and egress is over the public sidewalk, then he must make such area of the public sidewalk reasonably safe, regardless of the fact that absent his special use of the public sidewalk he would not owe a duty to make it reasonably safe.'

The law is well established in this state, as elsewhere, that the defendant owed no common law duty to pedestrians to keep the public sidewalk free of ice and snow. Marsh v. McLaughlin et ux., 210 Or. 84, 309 P.2d 188 (1957); Rees v. Cobbs & Mitchell Co., 131 Or. 665, 283 P. 1115 (1930); 39 Am.Jur.2d 918, Highways, Streets and Bridges § 517; 19 McQuillin (3d Ed.), Municipal Corporations § 54.42(b) at 104--105.

It is also uniformly held that an ordinance requiring the property owner to keep the sidewalk free of ice and snow and imposing a penalty for failure to do so does not impose civil liability on the property owner in favor of a third person. Smith v. Meier & Frank Inv. Co., 87 Or. 683, 171 P. 555 (1918); Rees v. Cobbs & Mitchell Co., Supra; Annot., 82 A.L.R.2d 998, 999; 39 Am.Jur.2d, Supra, § 518 at 919; 19 McQuillin, Supra at 106; 2 Restatement of Torts (Second) § 288, Comment d. Municipal ordinances requiring the removal of ice and snow upon a sidewalk are held to create a duty in favor of the city only. In effect, they merely require property owners to aid the city in the performance of its duty. marsh v. McLaughlin et ux., Supra; Rees v. Cobbs & Mitchell, Supra; Major v. Fraser, 78 Nev. 14, 368 P.2d 369 (1962).

If the allegation in the third amended complaint that plaintiff, 'after having been a customer in defendant's premises, and at the invitation of defendant's manager and for the benefit of defendant,' entered upon the public sidewalk is considered to allege that plaintiff was an invitee, it does not help plaintiff. As the defendant owed no duty to plaintiff under the common law, plaintiff's status is not important. Basinger v. Standard Furniture Co., 118 Utah 121, 220 P.2d 117 (1950). Moreover, the rule that a landowner owes no duty to pedestrians under an ordinance such as that involved in the instant case also applies to customers and patrons. 39 Am.Jur.2d, Supra, § 517 at 919; Annot., 88 A.L.R.2d 331, 338.

Plaintiff seeks to avoid the rule by contending it does not apply when the public sidewalk is the means of ingress and egress to defendant's property. We fail to see that this makes any difference. Customarily, public sidewalks are always the means of ingress and egress to business establishments along the streets. Plaintiff cites Merkel v. Safeway Stores, Inc., 77 N.J.Super. 535, 187 A.2d 52 (1962); Quigley's Pharmacy, Inc. v. Beebe, 261 A.2d 242 (D.C.App.1970); Schwartz v. Helm's Bakery Limited, 67 Cal.2d 232, 60 Cal.Rptr. 510, 430 P.2d 68 (1967), in support of his position that defendant owes a duty to make the sidewalk safe when used as a means of ingress and egress. They are not applicable. In Merkel the defendant's parking lot was located adjacent to defendant's store. There was no entrance to the store except over a public sidewalk between the parking lot and the store. In effect, the sidewalk where plaintiff fell on ice was a part of the parking area. See Dawson v. Payless for Drugs, 248 Or. 334, 433 P.2d 1019, 35 A.L.R.3d 222 (1967).

In Quigley the plaintiff had left defendant's premises and was walking to a mailbox when she fell because of a defect in the sidewalk. The court found that defendant had no common law duty to keep the sidewalk in repair when he made no special use of the sidewalk. While the court did indicate by dictum that special use could include ingress and egress to defendant's store, we would reject that proposition because public sidewalks are always used for ingress and egress to business places.

The facts in Schwartz are vastly different from the case at bar. There, a four-year-old child was struck by an automobile while crossing the street to make a purchase from a doughnut truck. The court held that the duty to an invitee includes exercising reasonable care to prevent his being injured on the premises. 'Premises' were held to include such means of ingress or egress as a customer may reasonably be expected to use. However, the court also emphasized that the crucial element was control. There is no allegation that defendant was exercising any special control over plaintiff or the sidewalk or carrying on any activities which created a hazard to plaintiff.

Plaintiff concedes the existence of the rule that an ordinance such as in the case at bar runs exclusively to the municipality and not to plaintiff. However, plaintiff argues that such a rule is arbitrary, 'no longer meets the needs of our urban society,' and is against public policy. However, the rule is almost universal in its application except in the courts of West Virginia, Annot., 82 A.L.R.2d, Supra at 1004. If the rule is to be changed to provide for liability to a third party, it should be done by an ordinance, charter or statute. See Marsh v. McLaughlin et ux., Supra; Olson v. Chuck et al., 199 Or. 90, 259 P.2d 128 (1953); Caviness v. City of Vale, 86 Or. 554, 169 P. 95 (1917); 19 McQuillin (3d Ed.), Supra at 107.

The second count of plaintiff's complaint is based on the theory of public nuisance. The Astoria city code states that a violation of the snow removal ordinance may result in a criminal penalty, is a public nuisance, and that 'the imposition of a penalty does not relieve a person of the duty to abate a nuisance.'

A similar argument was rejected by this court in Marsh v. McLaughlin, Supra. There, the plaintiff, injured by falling over a defective public sidewalk, alleged both negligence and nuisance in an action against the abutting owner. This court disposed of the negligence question by following the general rule that an ordinance requiring abutting owners to repair sidewalks does not impose liability on the abutting owner to persons using the sidewalk. As to the cause of action based on nuisance, the court stated:

'We see no reason for considering that the cause of action based in the theory of nuisance presents any different problem from that presented by the cause predicated on negligence. Both rest upon the premise that the city has by charter imposed upon the defendant the duty to repair plus liability to injured persons for failure to repair. By the great weight of authority the charter of the City of Salem imposes the duty to repair as between the city and the property owner but does not impose liability for injuries suffered by third parties. If the complaint had alleged that the defendant had by affirmative action created a nuisance in the street, a different question would be presented.' 210 Or. at 92, 309 P.2d at 191.

Obviously, the existence of the snow and ice on the public...