Graalum v. Radisson Ramp, Inc.

• Decision Date: 03 June 1955
• Docket Number: No. 36480,36480
• Citation: 71 N.W.2d 904,245 Minn. 54
• Parties: Selma GRAALUM, Respondent, v. RADISSON RAMP, Inc., et al., Defendants, Radisson Ramp, Inc., Appellant, City of Minneapolis, Respondent.
• Court: Minnesota Supreme Court

Page 904

71 N.W.2d 904

245 Minn. 54

Selma GRAALUM, Respondent, v. RADISSON RAMP, Inc., et al., Defendants, Radisson Ramp, Inc., Appellant, City of Minneapolis, Respondent.

No. 36480.

Supreme Court of Minnesota.

June 3, 1955.

Syllabus by the Court.

1. The mere fact that one in private employment also has a commission from the public as a police officer does not protect his private employer from liability to third persons for acts which are referable to the former's capacity as private employee, although the private employer is not responsible for acts or omissions referable to his character as a public officer.

2. When private persons employ police officers with the consent of a municipality to do special work for them, and such officers are engaged in the performance of their duties to their private employers and are acting within the scope of their powers and duties, they are servants and employees of such private persons.

3. Where upon conflicting evidence the facts are inconclusive, the question as to whether a police officer was acting in his capacity as a servant of his private employer or in his capacity as an official of the public is for the jury.

4. The Right of control and not necessarily the exercise of that right is the test of the relation of master and servant.

5. The abutting owners or occupants are not liable to pedestrians for injuries caused by stumbling or slipping on sidewalks which have become slippery and dangerous from Natural (as distinguished from artificial) accumulations of ice and snow.

6. Where an abutting owner or occupant makes an Extraordinary use of a sidewalk for his own convenience, he owes a duty to the public to exercise due care in seeing that the affected portion of the sidewalk is maintained in a safe condition for the passage of pedestrians.

7. An extraordinary use of an adjacent sidewalk arises when, in the light of all the circumstances of the particular case, such use is not only for the personal convenience and benefit of the abutting occupant but is also of such a nature, in Kind or in Degree, that a condition is created which interferes with, and is in derogation of, a normal use of the sidewalk by the public.

Freeman, Peterson, Hoppe & Gaughan, Minneapolis, for appellant.

Kelly, Mangan & Kelly, Charles A. Sawyer, City Atty., Minneapolis, for respondents.

MATSON, Justice.

Defendant Radisson Ramp, Inc., in a personal injury action appeals from an order denying its alternative motion for judgment or a new trial.

Defendant Radisson Ramp, Inc., operates a parking garage in downtown Minneapolis at 21 South Seventh street, with the driveway leading from the street directly across the sidewalk to the garage ramp or entrance. The sidewalk is 14 feet six inches wide from the building line to the curb, and the driveway has a width of 23 feet and 11 inches. Herein we shall refer to Radisson Ramp, Inc., as the defendant and to the other defendant, city of Minneapolis, as the city. ¹

On December 21, 1951, plaintiff, who was then 67 years old, fell and broke her hip when she was crossing defendant's driveway. About 6 p.m. on that day, plaintiff was walking westerly on Seventh street to catch a streetcar on Hennepin avenue. When she arrived at the driveway her progress, as well as that of other pedestrians, was blocked by a car which, on its way into defendant's garage, was parked temporarily across the sidewalk. About 10 or 12 pedestrians were coming from each direction. Leonard E. Miller, a Minneapolis police officer, stationed at the driveway entrance, signaled the pedestrians to stop. Plaintiff stopped and did not start again until the police officer signaled the pedestrians to proceed.

Taking, as we must, the evidence in the light most favorable to the verdict, the car was parked on the level portion of the sidewalk in such a position that plaintiff was compelled to proceed to her right around the rear of the car. Although the portion of the sidewalk occupied by the driveway sloped as a whole only about one inch in eight feet from the building line to the curb, the evidence establishes that the approach leading from the street level to the sidewalk level, for a distance of about two or two and one-half feet, had a pronounced slope. It was while plaintiff was walking on this pronounced slope to the rear of the car that she slipped, fell, and broke her hip.

The jury returned a verdict for the plaintiff. The trial court denied defendant's motion for judgment notwithstanding the verdict or a new trial. Defendant appeals from the court's order. We have issues as to whether the evidence sustains the finding of negligence against the defendant and also as to whether the evidence sustains a finding that the police officer was an agent of the defendant Radisson Ramp, Inc.

We shall first consider the evidence and the law as to the relationship between the defendant Radisson Ramp, Inc., and Leonard E. Miller, the police officer. The defendant had an arrangement with the city whereby a policeman was assigned full time to the driveway in front of the Radisson Ramp. The policeman was paid by the city of Minneapolis and the defendant reimbursed the city monthly in an amount equal to his salary. Whenever the policeman worked more than 40 hours per week in front of the Radisson Ramp, defendant paid him directly for such overtime. The policeman controlled the flow of automobile traffic in and out of the garage and regulated the flow of pedestrians over the sidewalk in front of the ramp. Policeman Miller had worked in front of the Radisson Ramp for one and a half years before the accident.

Employees of the garage directed Miller when they could handle more cars. Defendant furnished the sand and pan which Miller used in sanding the sidewalk. The garage manager gave him detailed instructions as to how to conduct the operations in front of the ramp. Upon arrival each morning, policeman Miller reported to the garage manager.

The policeman testified that he was working overtime whenever he worked beyond 6 p.m. except on Monday evenings. Although it is here of little legal significance, it is to be noted that the accident did not occur on a Monday and that the policeman was working overtime when the plaintiff fell.

1--2. In directing pedestrian and motor traffic on defendant's driveway across the public sidewalk, was Miller performing such duties in his official capacity as a police officer of the city or as a servant of a private employer, the defendant? It is well settled that a police officer, separate and apart from his official capacity, may undertake to act in a capacity which in law constitutes a civil agency. In fact it is practically a universal rule that:

'* * * the mere fact that one in private employment also has a commission from the public as a police officer does not protect his private employer from liability to third persons for acts which are referable to the former's capacity as private employee, although the private employer is not responsible for acts or omissions referable to his character as a public officer.' 35 Am.Jur., Master and Servant, § 542.

When private persons employ police officers with the consent of a municipality to do special work for them, and such officers are engaged in the performance of their duties to their private employers and are acting within the scope of their powers and duties, they are servants and employees of such private persons. ² The private persons thereby become liable for the officer's negligent acts committed in the line of his duty. ³ Private persons will be relieved from liability for the acts of commissioned police officers when performed in their official capacity although private persons paid such officers for services in and about the private employer's property. ⁴

3. The difficult problem lies in determining in what capacity the police officer was acting at a given time. Where upon conflicting evidence the facts are inconclusive, the question as to whether he was acting in his capacity as a servant of his private employer or in his capacity as an official of the public is for the jury. ⁵ Some authorities maintain that police officers are prima facie public officers for whose wrongful acts the private employer is not liable. ⁶

4. Since the mere fact that an employee may be a police official does not exempt his private employer from liability to third persons, it becomes necessary to ascertain whether the master-servant relationship existed between officer Miller and the defendant. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. ⁷ This court has stated that the Right of control and not necessarily the exercise of that right is the test of the relation of master and servant. ⁸ 'Basically, it is the distinction between a person who is subject to orders as to How he does his work and one who agrees only to do the work in his own way.' ⁹ The manager of defendant's parking garage testified that he told officer Miller in some detail how to conduct the operations in front of the ramp. Officer Miller reported to the manager of the ramp when he arrived each morning. The manager told him what to do and through the other employees of the ramp informed officer Miller during the day when the ramp was full. The fact that officer Miller was paid on the basis of time worked is also indicative of the master-servant relationship. ¹⁰ Officer Miller denied that he received any instructions relative to his duties from Radisson Ramp, Inc. He claimed he received all his orders from the police sergeant. The evidence was conflicting and inconclusive and therefore the issue was properly submitted to the jury. The evidence sustains the jury's finding that officer Miller was acting in his capacity as an employee of the defendant at the time of the accident.

5. We turn to...