Hale v. City of Knoxville

• Decision Date: 17 December 1949
• Citation: 25 Beeler 491,226 S.W.2d 265,189 Tenn. 491
• Parties: , 189 Tenn. 491, 15 A.L.R.2d 1283 HALE v. CITY OF KNOXVILLE et al.
• Court: Tennessee Supreme Court

Page 265

226 S.W.2d 265

25 Beeler 491, 189 Tenn. 491, 15

A.L.R.2d 1283

HALE v. CITY OF KNOXVILLE et al.

Supreme Court of Tennessee.

Dec. 17, 1949.

Rehearing Denied Feb. 10, 1950.

Nathan Orris Hale, pro se.

Poore, Cox, Baker & McAuley and Arthur D. Byrne, Knoxville, for Parkrite Auto Park, Inc., and others.

Richard L. Carson, Knoxville, for City of Knoxville.

GAILOR, Justice.

This is a suit in negligence for personal injuries which plaintiff alleges he sustained when, as a pedestrian, he slipped and fell on an ice-covered public sidewalk in the City of Knoxville, on the north side of Cumberland Avenue, about 60 feet west of Gay Street. The defendants named in the declaration were (1) the City of Knoxville, hereinafter referred to as 'the City', and (2) the operators of a public parking lot at the entrance to which the accident occurred. As such operators, the declaration named two private corporations, Parkrite Auto Park, Inc., and Knoxville Parkrite, Inc., and three individuals, E. L. Wallace, C. W. Ennis, Jr., and D. M. Carothers, doing business as Parkrite Auto Parks, Ltd. The declaration does not specify, nor distinguish the interests of the corporations and individuals in the Parking lot and its operation, and we will refer to both hereinafter, as 'Operators.'

The City and the Operators filed separate special demurrers to all counts of the declaration. The Trial Judge, after writing and filing a careful opinion with citation of authority, which has been of great aid to the Court, sustained the demurrers and dismissed the suit. The plaintiff has assigned errors and appealed.

The declaration is in three counts. By the first, a common-law count, plaintiff charges that the Defendants negligently caused his injuries by causing ice to form on the sidewalk upon which he fell and broke his arm. The pertinent part of this count is as follows:

'A heavy snow fell within the city limits of Knoxville, Tennessee, on February 20, 1947, and covered the streets, and sidewalks of said city to a depth of two inches, or more. It was below freezing weather. The defendants flushed and washed the snow off the streets and sidewalks in the business district and along and upon West Cumberland Avenue, Knoxville, Tennessee, within the City limits of Knoxville, Tennessee, from the northwest corner of South Gay Street and West Cumberland Avenue including the entrance to the parking lot on the northwest side of West Cumberland Avenue. Some of the water which the defendants used to flush and wash off the snow on West Cumberland street and sidewalk froze and formed a very slick coating of ice in the West Cumberland Avenue entrance to said parking lot which caused a continuing, menacing, dangerous condition to exist in said parking lot entrance by their failure to remove the ice formed thereon. The defendants had knowledge of this dangerous condition, but took no steps to remedy it, or by the exercise of reasonable diligence, should have known the same when they sprinkled or flushed the snow off the street and sidewalk in the presence of weather conditions below freezing forecast at the time.

'As a direct and proximate result of the negligence and carelessness of the defendants in creating, permitting and maintaining said icy condition on the parking lot entrance on West Cumberland Avenue without barricade or lights to warn the traveling public of its presence, plaintiff, around 9 A. M., February 21, 1947, while he was walking east on said West Cumberland Avenue, where he had a right to be, and while he was in the exercise of all due care and caution for his own safety, slipped and fell on the coating of ice just as he stepped into the entrance to said parking lot.' (Italics ours.)

Obviously, though the pleader uses the plural, 'defendants' in the foregoing count, the action detailed can refer only to the City and a performance by it, of a governmental function in flushing and washing the streets and sidewalks of the downtown business district. This count states no cause of action against the Operators, and the statement made creates no liability on the City, since it was in the performance of a governmental function. 'Since this was clearly a failure to perform a governmental function, it could not be the basis for liability in tort. Irvine v. Chattanooga, 101 Tenn. 291, 294, 47 S.W. 419; Conelly v. Nashville, 100 Tenn. 262, 46 S.W. 565; McCrowell v. Mayor & Aldermen, 73 Tenn. 685, 690. Charge of nonenforcement of its ordinances, without more, is an insufficient predicate for the City's liability in tort. Dillon, Municipal Corporations (5th Ed.) vol. 4, § 1705, p. 2086; McQuillan, Municipal Corporations (2d ed.) vol. 7, Revised, § 2964, p. 179; 43 C.J., Municipal Corporations, p. 1030, note 4; Harman v. City of New York, 148 App.Div. 61, 131 N.Y.S. 1032; Herman v. City of New York, 148 App.Div. 61, 131 N.Y.S., 1032.' City of Knoxville v. Hargis, 184 Tenn. 262, 268-269, 198 S.W.2d 556, 558.

By the second count of the declaration, plaintiff alleged that his injuries were negligently caused by the breach on the part of the Operators and non-enforcement on the part of the City, of a certain section of the Knoxville City Code, being section 36 of Chapter 38, which makes it the duty of the abutting property owner or occupant to 'remove or cause to be removed from the sidewalks adjoining his premises, all ice snow, etc.' The failure of the City officials to enforce this ordinance, gave rise to no liability against the City to pedestrians, Knoxville v. Hargis, supra, and the breach of the ordinance by the Operators, did not render them liable to third persons. In a recent case, Harbin v. Smith, 1934, 168 Tenn. 112, 76 S.W.2d 107, where the suit was against an abutting owner for failure to keep sidewalks in repair, speaking through Mr. Justice Cook, this Court said in the course of the opinion:

'The weight of authority and of sound reason is that a municipality cannot shift its primary liability for an omission of duty to keep streets and sidewalks reasonably safe, and statutes and ordinances requiring abutting property owners to maintain sidewalks adjoining their premises do not operate to impose liability directly upon such owners for injury resulting to travelers in consequence of the municipality's omission of duty. Annotation, 41 A.L.R., p. 217; Hay v. City of Baraboo, 127 Wis. 1, 105 N.W. 654, 3 L.R.A., N.S., 84, 115 Am.St.Rep. 977; Hanley v. Fireproof Building Co., 107 Neb. 544, 186 N.W. 534, 24 A.L.R. 382; City of Rochester v. Campbell, 123 N.Y. 405, 25 N.E. 937, 10 L.R.A. 393, 20 Am.St.Rep. 760. * * *

'We think it clear that the duty imposed by this ordinance was for the benefit of the municipality and not for the benefit of individuals composing the public. They were already sufficiently secured in their right to have safely passable sidewalks through the obligation imposed by the municipal charter, and indemnity was provided for any damages that might be sustained as a result of the municipality's negligence through the common-law liability of the corporation. City of Knoxville v. Felding, 153 Tenn. , 590, 285 S.W. 47.' Harbin v. Smith, 168 Tenn. 112, 116, 117, 76 S.W.2d 107, 109.

By the third, which is another count under rules of the common law, plaintiff charged that the Operators, '* * * carelessly and negligently allowed a water spigot, which was located about 85 feet west of the northwest intersection of West Cumberland Avenue and South Gay Street, near the sidewalk entrance on West Cumberland Avenue to said parking lot, to stand open from which a large quantity of water streamed and ran down across the West Cumberland Avenue entrance to said parking lot, said defendants, City of Knoxville, carelessly and negligently allowed said water from said spigot to run across and upon said West Cumberland Avenue entrance to said parking lot, and to accumulate thereon, and freeze and remain as an obstruction on said sidewalk entrance on West Cumberland Avenue to said parking lot.'

This statement is wholly insufficient to charge the City for a number of reasons. The declaration states that the unusual cold and snow fell upon Knoxville on February 20, and that the defendant, at 9:00 a. m., on the morning of February 21, suffered his injuries. There was no allegation of notice, actual or constructive, to the City. This was indispensible. City of Knoxville v. Felding, supra. The statements of this count of the declaration could not create a jury question of constructive notice by lapse of time, or notoriety on account of other accidents, etc. City of Knoxville v. Hargis, supra. And as to the allegation of negligence in the third count against the defendant Operators, there is no showing who left the hydrant open, or for how long it had run, and there is no allegation that the flow of water from the hydrant, and the creation of the icy condition of the sidewalk was wilful or malicious. As abutting property owners or occupants, the defendant Operators owed pedestrians no duty to clean the sidewalks. Harbin v. Smith, supra, and many supporting cases cited in Harley v. Fireproof Bldg. Co., 107 Neb. 544, 186 N.W. 534, 24 A.L.R. 387, Sewall v. Fox, 98 N.J.L. 819, 121 A. 669, 28 A.L.R., 1360, 28 Ariz. 207, 236 P. 701, 41 A.L.R. 212. And even if the Operators, by reasonable use of their premises, had increased the slippery condition, they would not be liable to a pedestrian who fell. Massey v. Worth, 9 W.W.Harr., Del., 211, 197 A. 673. Compare 40 C.J.S., Highways, § 258, p. 304.

By analysis of each count separately, it is clear that the declaration was demurrable, but viewing the declaration as a whole, there are two fatal defects which justified the Trial Judge in dismissing the suit: (1) A misjoinder of parties defendant, (2) An irreconcilable repugnance between the statement of the causes of action in counts one and three.

While apparently deploring the rule and its technicality, Prosser in his work on Torts (1941 Ed.)...