Hovden v. City of Decorah

• Decision Date: 09 January 1968
• Docket Number: No. 52588,52588
• Citation: 155 N.W.2d 534,261 Iowa 624
• Parties: Myrtle Sophia HOVDEN, Appellant Cross-Appellee, v. CITY OF DECORAH, Iowa, Appellee Cross-Appellant, Thursten and Martha L. Kjohe,(Not appearing).
• Court: Iowa Supreme Court

Page 534

155 N.W.2d 534

261 Iowa 624

Myrtle Sophia HOVDEN, Appellant Cross-Appellee, v. CITY OF DECORAH, Iowa, Appellee Cross-Appellant, Thursten and Martha L. Kjohe,(Not appearing).

No. 52588.

Supreme Court of Iowa.

Jan. 9, 1968.

Strand & Kiener, Decorah, for appellant cross-appellee.

Miller, Pearson & Gloe, Decorah, for appellee cross-appellant.

STUART, Justice.

Plaintiff brought this action to recover damages from the City of Decorah for injuries resulting from a fall on a public sidewalk on March 5, 1966. She alleged defendant was negligent in allowing ice, snow, and slush to accumulate for an unreasonable period of time on a public sidewalk contrary to 389.12 of the Iowa Code. The jury, after deliberating twenty-three minutes, returned a verdict for the plaintiff in the full amount asked, $10,000. Defendant filed a motion for Judgment Notwithstanding the Verdict and, in the alternative, a Motion for a New Trial. The trial court overruled defendant's motion for judgment notwithstanding but granted a new trial. Plaintiff appealed from the trial court's ruling on the motion for new trial and defendant cross-appealed from the ruling on the Motion for Judgment Notwithstanding the Verdict.

We shall discuss only defendant's cross-appeal as our determination of this issue disposes of the entire case.

I. There does not seem to be any serious dispute between the parties as to the applicable law. The city has a duty under section 389.12 of the code to exercise reasonable care to keep its sidewalks in a reasonably safe condition. Allen v. City of Ft. Dodge, 183 Iowa 818, 821, 167 N.W. 577; Tillotson v. City of Davenport, 232 Iowa 44, 49, 4 N.W.2d 365. Mere slipperiness caused by ice or snow remaining in its natural condition is not ordinarily a defect in a sidewalk for which a municipality may be held liable. Staples v. City of Spencer, 222 Iowa 1241, 1245--1246, 271 N.W. 200; Tollackson v. City of Eagle Grove, 203 Iowa 696, 698, 213 N.W. 222; Parks v. City of Des Moines, 195 Iowa 972, 977, 191 N.W. 728; Ray v. City of Council Bluffs, 193 Iowa 620, 623, 187 N.W. 447; Gregg v. Town of Springville, 188 Iowa 239, 242, 174 N.W. 23; Evans v. City of Council Bluffs, 187 Iowa 369, 375, 174 N.W. 238; Allen v. City of Ft. Dodge, 183 Iowa 818, 821, 167 N.W. 577; Tobin v. City of Waterloo, 131 Iowa 75, 76--77, 107 N.W. 1031.

However, if the municipality has permitted snow or ice to remain on a sidewalk until it has become so ridged, rough and uneven that it is dangerous for a pedestrian to walk on exercising ordinary care, liability may be imposed; provided the municipality has actual or constructive notice of the condition of the walk and has had a reasonable opportunity to remedy such condition. Anderson v. City of Sioux City, 242 Iowa 139, 143, 45 N.W.2d 845; Gates v. City of Des Moines, 240 Iowa 775, 780, 38 N.W.2d 96; Geagley v. City of Bedford, 235 Iowa 555, 560, 16 N.W.2d 252; Franks v. City of Sioux City, 229 Iowa 1097, 1099--1100, 296 N.W. 224; Staples v. City of Spencer, supra; Wilson v. City of Clinton, 204 Iowa 1183, 1185, 216 N.W. 698; Tollackson v. City of Eagle Grove, supra; Parks v. City of Des Moines, supra; Ray v. City of Council Bluffs, supra; Gregg v. Town of Springville, supra; Evans v. City of Council Bluffs, supra; Allen v. City of Ft. Dodge, supra; Tobin v. City of Waterloo, supra; see also 8 Drake Law Review 149.

The length of time sufficient to constitute constructive notice of the condition and a reasonable opportunity to remedy it depends on the facts and circumstances of each case and is generally a question for the jury. Parks v. City of Des Moines, supra; Tillotson v. City of Davenport, supra. We therefore examine the evidence in the light most favorable to plaintiff to determine if it was sufficient to create a jury issue on the questions of constructive notice of and reasonable opportunity to remedy the defect.

Plaintiff left her home at 11:45 a.m. on Saturday, March 5, 1966, and was hurrying to the bank to pay her rent before it closed at 12:00 noon. She drove to an area known as the city parking lot. This area is directly east of a building housing the Kephart Music Center. State Street extends through this parking area joining North Alley on the north and Water Street on the south. A public sidewalk adjoins the east side of the Kephart Music Center and the west side of State Street which, at the time of the accident, had metered diagonal parking spaces abutting the sidewalk. Plaintiff parked her car in the 5th parking place from the south end of the parking area facing the sidewalk on which the accident occurred. She got out on the driver's side of her car and proceeded along the sidewalk, which was covered with about an inch of slush to some ice where she fell and was injured. Plaintiff stated the cause of her fall was the rough and uneven ice.

It was agreed by all concerned that the City of Decorah had no actual notice of the condition of the sidewalk at the time of the fall. The city had received no complaints about snow removal on March 4 or 5. It had no prior difficulty with dangerous snow or ice accumulations in this area. There was no evidence that any portion of the three inch snow on February 21 remained. Plaintiff does not so argue. There was an unusually warm period between February 19, 1966 and March 4, 1966.

Snow began falling during the late afternoon of March 4, 1966 and .31 of an inch precipitation was recorded by the weather bureau for that date. On March 5, a trace of snow was recorded. The owner and manager of the music center adjoining the walk where plaintiff fell, had shoveled the walk in front of his store on the morning of March 5, 1966 but did not shovel the sidewalk in question along the east side of his store because the city had always done it and he assumed it was their responsibility. The city records show that the only work done on Saturday, March 5, 1966 was two hours sanding intersections at stop signs. The sidewalk and parking lot were slushy immediately before plaintiff fell and the snow was melting at the time of the accident. It had been snowing off and on all morning of March 5, 1966 and it was still snowing when Mr. Kephart took Mrs. Hovden to the hospital immediately after her fall.

There seems to be an almost unlimited number of cases against municipalities for injuries sustained in falls on icy sidewalks.

The closest case on the facts is Batie v. City of Humboldt, 228 Iowa 528, 532, 292 N.W. 857. There snow began falling at 3:00 a.m. on January 13th. It stopped about noon. Plaintiff fell on icy footprints made from slush about 3:00 p.m. on the same day. There was no claim of actual knowledge of the condition. We said:

'Under the factual situation shown, in order that constructive notice to the city could be imputed, it was necessary to prove that the alleged defective street condition...