Gossler v. Miller

• Decision Date: 15 July 1966
• Citation: 107 N.H. 303,221 A.2d 249
• Parties: Mildred GOSSLER v. Maurice I. MILLER.
• Court: New Hampshire Supreme Court

Page 249

221 A.2d 249

107 N.H. 303

Mildred GOSSLER v. Maurice I. MILLER.

Supreme Court of New Hampshire.

Argued April 5, 1966.

Decided July 15, 1966.

King, Nixon & Christy, Manchester (David L. Nixon, Manchester), for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch, Manchester (Joseph M. McDonough, III, Manchester), for defendant.

WHEELER, Justice.

This is an action in case to recover damages for personal injuries alleged to have been caused when the plaintiff fell due to a defect in the sidewalk adjacent to and within 3 to 4 feet of the entrance of defendant's business premises. It is a companion case to Gossler v. City of Manchester, N.H., 221 A.2d 242, decided this day involving the same plaintiffs and based upon the same facts.

The parties agreed to the following facts: 'On or about October 15, 1959, at approximately 12:15 P.M., the plaintiff was walking in a generally southerly direction on a cement type public sidewalk on the west side of Chestnut Street, in Manchester, New Hampshire. At a point on said sidewalk which is adjacent to, and within three to four feet of the entrance way of business premises located on the westerly side of Chestnut Street, which were then owned by the defendant, the plaintiff allegedly fell to the ground and sustained personal injuries due to an alleged defect in said sidewalk. Plaintiff does not claim that any affirmative act of the defendant or his agents caused the defect complained of but does allege that the defendant, prior to the date of plaintiff's injury, had actual notice of the sidewalk defect and had been requested to repair it, but had failed to take any action as a result of said notice and request. The defendant was the owner and in control of the premises adjacent to said sidewalk, and, as an owner abutting upon a public highway, was the owner of a reversionary interest in the sidewalk area where the injury was sustained, subject to a right of way in favor of the general public.

'The parties agree, however, that for purposes of a ruling on the issues raised by the pleadings in this matter, the plaintiff's allegations may be considered as true.'

The defendant filed a motion to dismiss on the ground that the sidewalk upon which the plaintiff fell was a public sidewalk which defendant owed no duty to the plaintiff to keep in repair and suitable for travel thereon. The questions of law raised by the pleadings, the agreed statement of facts and motion to dismiss were reserved and transferred by Loughlin, J.

The issue presented by the agreed statement of facts is whether the defendant property owner owed a duty to the plaintiff who was injured because of an alleged defect in a public sidewalk abutting defendant's premises, which defect was not caused by any affirmative act of the defendant, but of which the defendant had been notified and had been requested to repair the same but had neglected to take any action relative to it.

'It is the generally recognized commonlaw rule, except in Pennsylvania, that the owner or occupants of property abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public, including invitees or business invitees of the abutter, a duty to keep the sidewalk in safe condition. Annot. 88 A.L.R.2d 331, 340(II); Restatement (Second), Torts, s. 349, ill. 2; Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569, 88 A.L.R.2d 326.

The plaintiff concedes that while the overwhelming weight...