LeGrande v. Misner, 3947

• Decision Date: 30 November 1971
• Docket Number: No. 3947,3947
• Parties: Geraldine LeGRANDE, Appellant (Plaintiff below), v. Mary MISNER et al., Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1252

490 P.2d 1252

Geraldine LeGRANDE, Appellant (Plaintiff below), v. Mary MISNER et al., Appellees (Defendants below).

No. 3947.

Supreme Court of Wyoming.

Nov. 30, 1971.

Edward P. Moriarity, of McClintock, Mai, Urbigkit & Moriarity, Cheyenne, for appellant.

James L. Applegate and W. Perry Dray, of Hirst & Applegate, Cheyenne, for appellees.

Before McINTYRE, C. J., and PARKER, McEWAN and GRAY, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

This is an appeal from a summary judgment granted upon defendant-appellees' motion to an action by plaitiff-appellant in which she alleged that due to defendants' negligent and careless failure to remove snow and ice from defendant's ¹ business sidewalk, plaintiff fell and injured herself.

Defendant operated a restaurant business known as Mary's Dairy Store in Cheyenne, Wyoming. Early one Saturday morning plaintiff proceeded from her residence and walked about 2 1/2 blocks to defendant's place of business to have breakfast. It had begun to storm sometime during the preceding Friday, and, although it was not snowing on Saturday morning, there were 2 to 4 inches of snow on the ground and some ice under the snow. Plaintiff reached defendant's place of business without incident. She ate her breakfast and, upon leaving the store, slipped and fell upon the sidewalk area in front of the building and injured her left ankle.

On June 6, 1970, plaintiff filed her complaint and alleged that she was a business invitee of defendant and, upon leaving defendant's premises, she slipped and fell upon the sidewalk and suffered serious physical injury. She further alleged that defendants negligently and carelessly failed to remove the snow and ice from the sidewalk and such negligence proximately caused her injuries. She further contended in her complaint that defendants failed, neglected, and refused to meet the duty required by § 40-8 of the Code of the City of Cheyenne, Wyoming, which requires that all sidewalks be maintained clean and free from ice, snow, or slush.

Defendants answered and denied the above allegations. Whereupon, interrogatories were addressed to plaintiff by defendants and to defendant by plaintiff, and answers made. Depositions were taken of the parties and several witnesses.

Defendants, on September 3, 1970, moved the trial court to grant summary judgment on the ground that there was no genuine issue as to any material fact and defendants were therefore entitled to judgment as a matter of law. The motion was based upon affidavits of four witnesses, and the depositions and answers to interrogatories of the parties.

On September 11, 1970, plaintiff filed a notice of taking depositions of Everett D. Misner, husband of defendnat, and on September 14, notice of taking deposition of the witness, Frank Baird.

On September 23, 1970, apparently in opposition to defendants' motion, plaintiff filed an affidavit of plaintiff along with the affidavits of two witnesses and excerpts from the depositions of two other witnesses. Whereupon, on September 24, the trial court heard the motion for summary judgment and, after considering the pleadings, affidavits, depositions, interrogatories, answers and oral argument of counsel, found there was no genuine issue of fact to be submitted to the trial court and that defendants were entitled to judgment as a matter of law. Summary judgment was entered in favor of defendants, dismissing plaintiff's complaint and action.

Whereupon, plaintiff filed her notice of appeal.

Plaintiff contended that the trial court erred in granting defendants' motion for summary judgment because there were material questions of fact for the jury which were: (a) Was there a duty upon defendant to remove the ice and snow from the sidewalks?; (b) if so, did defendant perform this duty in a reasonable and prudent manner?; and (c) if not, was such negligent performance of duty a proximate cause of plaintiff's injuries? Plaintiff contended that defendants had superior knowledge of the hazardous conditions of the walks and negligently failed to alleviate the situation or to warn plaintiff before she left the place of business.

An examination of the record reveals certain facts and contentions. At about 6 a. m. on the morning of the accident defendant went to the store to open it for business. She shoveled a path in the front of the store. In her deposition defendant stated that upon her arrival at the store, and prior to the plaintiff's appearance upon the scene, her husband did further shovel the walks, which statement was corroborated by the husband. In any event, it is clear from the record that some shoveling had been done prior to plaintiff's accident.

Sometime prior to 7 a. m. on Saturday, October 4, 1969, plaintiff left her residence and walked the 2 1/2 blocks to Mary's Dairy over sidewalks that were covered with a substantial amount of snow and ice. She went there for breakfast, as was her custom. She took other meals there on an average of at least once a day during the month prior to the accident. She had been at the store for dinner during the storm on the evening prior to the accident.

The front door of the store opens onto a concrete slab which acts as a step to the door, which slab is approximately 5 feet wide, extends out approximately 5 feet, and is about 5 inches high. In her answer to interrogatories plaintiff stated, '* * * The point of falling was adjacent to the doorway, just on or just off the entry slab.'

Plaintiff did not recall during the morning of the accident that anyone in her 2 1/2 block walk had shoveled their sidewalks. She knew there was snow and ice under foot. Plaintiff did not know for sure if defendant's sidewalks were shoveled and stated that she did not recall that they were shoveled, nor did she recall whether or not there was a path shoveled. She testified, 'It was all snow to the best of my recollection.'

Plaintiff argued that if the record is construed in the light most favorable to plaintiff's contentions it would be found there were material questions of fact for the jury to decide. In support of this argument plaintiff stated that, as shown by her deposition and affidavit, the walks in front of defendant's store were not shoveled on the morning she fell. We have carefully examined the deposition and affidavit and do not find that statements from which such conclusions could reasonably...