Johnson v. J. S. Bell, Jr., & Co., 5157

• Decision Date: 28 November 1960
• Docket Number: No. 5157,5157
• Citation: 202 Va. 274,117 S.E.2d 85,82 ALR2d 995
• Court: Virginia Supreme Court
• Parties: , 82 A.L.R.2d 995 MARY E. JOHNSON v. J. S. BELL, JR. & COMPANY, INC., ET AL. Record

Page 85

117 S.E.2d 85

202 Va. 274, 82 A.L.R.2d 995

MARY E. JOHNSON v. J. S. BELL, JR. & COMPANY, INC., ET AL.

Record No. 5157.

Supreme Court of Appeals of Virginia

November 28, 1960.

Robert M. White (Paul M. Lipkin; Goldblatt and Lipkin, on brief), for the plaintiff in error.

William L. Ward, for defendant in error, Norfolk Redevelopment & Housing Authority.

John W. Winston (Seawell, McCoy, Winston and Dalton, on brief), for defendant in error, J. S. Bell, Jr. & Company, Inc.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

On December 12, 1958, at approximately 11:15 p.m., Mary E. Johnson was walking on the sidewalk of the east side of Chapel street near where it intersects with Brambleton avenue in Norfolk when she slipped and fell on snow and ice, which had accumulated from natural causes and had not been removed from the sidewalk as required by an ordinance of the City of Norfolk (§ 42-27 ¹). She suffered a fracture of her right ankle, and as a consequence she instituted action for damages grounded on negligence against the City of Norfolk; J. S. Bell, Jr. & Company, Inc., lessee of the premises adjacent to the sidewalk where she fell, and Norfolk Redevelopment & Housing Authority, the owner. Chapel street and Brambleton avenue are paved. The City of Norfolk filed a special plea alleging that plaintiff had not given the notice required by § 8-653, Code 1950, as amended. The special plea was sustained, and the City was dismissed as a party to the action. Demurrers to the motion for judgment were filed by the other two defendants. They were likewise sustained and the action was dismissed as to them. Plaintiff appealed from the order sustaining the demurrers.

The sole issue presented in this appeal is whether the violation of § 42-27 (now § 45-30) of the Code of the City of Norfolk, which requires the abutting property owner or occupant to remove snow from the sidewalk within the specified time, renders such owner or occupant liable to a third person for an injury arising from the condition of the sidewalk.

Although the question has been decided in a number of jurisdictions, it is one of first impression for us. The rule followed by the great weight of authority is succinctly stated by the author of the annotation in 24 A.L.R. 387, 388. There it is said:

'At common law the owner or occupant of property owes no duty to pedestrians to keep the adjacent sidewalks free from snow and ice coming thereon from natural causes, or to guard against the risk of accident by scattering ashes or using like precautions, and will not be liable in damages to persons injured by reason of his failure to do so. 13 R.C.L. 415. This duty is primarily that of the municipality, which alone has exclusive power and control over its public streets, and it cannot be evaded, suspended, or cast on others by any act of its own. Accordingly, it is uniformly held that an ordinance requiring lot owners to keep the sidewalks free from snow and ice, and imposing a penalty for the neglect or failure to do so, does not relieve the municipality of this primary duty with respect to the safety of its public streets, and does not impose a civil liability on the lot owner in favor of a third person injured by reason of its violation.'

Among the cases supporting this view are: Case v. Sioux City, 246 Iowa 654, 69 N.W.2d 27; Radinsky v. Ellis, 167 F.2d (D.C. Cir.) 745; Cowin v. Sears-Roebuck & Company, 125 Ind.App. 624, 129 N.E.2d 131; Hartsell v. Asheville, 164 N.C. 193, 80 S.E. 226; Hale v. City of Knoxville, 189 Tenn. 491, 226 S.W.2d 265; City of St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92, 17 S.W. 637; Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881. See also 63 C.J.S., Municipal Corporations, § 862(2) p. 234.

Appellant cites two West Virginia cases which hold to the contrary. In Rich v. Rosenshine, 131 W.Va. 30, 45 S.E.2d 499, and in Barniak v. Jewelry Co., 141 W.Va. 760, 93 S.E.2d 49, the court, in considering an ordinance similar to the one with which we are concerned, held, among other things, that a violation of such an ordinance created liability to third persons for injuries sustained, and that it was prima facie actionable negligence when it was the proximate cause of the injury. This holding is against the great weight of authority and we are not in accord with it.

Appellant argues that the ordinance in question was specifically designed for the safety of persons using the city sidewalks, and that a violation of it constitutes negligence as a matter of law.

In 38 Am. Jur., Negligence § 163, p. 834, it is said:

'* * * To afford a right of action for injury from the violation of a statute or ordinance, the complainant's injury must have been such as the statute or ordinance was...