Major v. Fraser

• Decision Date: 30 January 1962
• Docket Number: No. 4423,4423
• Citation: 368 P.2d 369,78 Nev. 14
• Parties: Florence Buttomer MAJOR, Appellant, v. John FRASER and Hazel H. Hall, Respondents.
• Court: Nevada Supreme Court

Page 369

368 P.2d 369

78 Nev. 14

Florence Buttomer MAJOR, Appellant, v. John FRASER and Hazel H. Hall, Respondents.

No. 4423.

Supreme Court of Nevada.

Jan. 30, 1962.

Nada Novakovich, Reno, for appellant.

R. P. Wait and E. J. Wait, Jr., Goldwater, Taber & Hill, Reno, for respondents.

McNAMEE, Justice.

This is an action to recover damages for injuries sustained by appellant on March 30, 1960 in a fall on a public sidewalk in Reno, Nevada. The sidewalk was in front of property occupied by respondent Fraser where he conducted an automobile parking lot and was adjoining the property of respondent Hall. Hall and her deceased husband had constructed a sidewalk in front of their property in July 1957. The construction contractor without authority from the Halls 'feathered in' the sidewalk across Halls' boundary line to connect with the adjoining sidewalk in front of Fraser's property in order to bring it down in a gradual slope to the height of Fraser's sidewalk. At the time of this construction the connection was smooth. By March 30, 1960 parts of the connection had gradually sloughed off causing a crack in the sidewalk. This was due not to any special use of the property by Fraser but to pedestrian use and the weather only. The driveway entering the parking lot was approximately 50 feet from the crack. Appellant's fall was caused by her heel catching in the crack. No repairs to the sidewalk had been made since its installation.

The lower court ordered a directed verdict in favor of the respondents. Appeal is from the judgment based on such verdict.

As to respondent Fraser, appellant concedes that an abutting property owner or occupant is under no duty to keep the sidewalk in front of his property in a reasonably safe condition. Such is the general rule at common law in the absence of statute. Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569 1957 Stats. of Nev., Ch. 287, § 10.496, p. 392, provides that the construction, maintenance and repair of sidewalks within the City of Reno is a governmental function, and further provides that the city may require the repair of sidewalks and make the cost thereof a lien against the abutting property. This power so granted to the city had not been exercised.

The general rule is that such statutes, even when the city has given an abutting owner specific notice to repair pursuant thereto, does not impose liability on the owner to travelers for injuries incurred by reason of a defective sidewalk. Pierce v. Jilka, 163 Kan. 232, 181 P.2d 330; Schaefer v. Lenahan, 63 Cal.App.2d 324, 146 P.2d 929.

In Schaefer the plaintiff tripped in a hole in the sidewalk, which had not been repaired by the abutting owner after notice from the city authorities. The court in upholding the said general rule cited many authorities and stated:

'It is the theory of appellant that this statute not only imposes a duty upon the property owner to pay for repairs, but also creates a duty in favor of travelers on the sidewalk, and makes the property owner liable to such travelers for injuries received because of the defective condition of the sidewalk. This interpretation of the statute is not sound. The primary duty to keep sidewalks in repair is on the city. The statute above quoted merely provides a statutory method by which the city may collect the cost of repairs from the property owner. The statute creates a duty on the part of the property owner to keep the sidewalks in repair--but that duty is owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor to reimburse the city if it is compelled to pay such damages.

'Statutes similar to the one here involved have been passed by many states. In interpreting such statutes, the overwhelming weight of authority is to the effect that a statute which requires abutting owners to maintain and repair sidewalks adjoining their premises, such work to be done by the municipality at the expense of the abutting owners in case of their failure to construct or repair, does not impose liability upon such owners, either to travelers or to the city, for injuries incurred by reason of the defective sidewalk.'

Even though the defect in the sidewalk was not caused by Fraser, appellant nevertheless contends that the defect constitutes a nuisance and Fraser is liable for maintaining a nuisance.

In the case of McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391, 57 A.L.R. 1, relied upon by appellant, the suit was against the city which had the statutory duty to regulate...