McKinley v. Fanning

• Decision Date: 04 June 1979
• Docket Number: No. 12342,12342
• Citation: 595 P.2d 1084,100 Idaho 189
• Parties: Dorothy McKINLEY, Plaintiff-Appellant, v. June FANNING, as the Personal Representative of the Estate of Wayne Fanning, deceased, and June Fanning, and Northwest Homes, Inc., an Idaho Corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1084

595 P.2d 1084

100 Idaho 189

Dorothy McKINLEY, Plaintiff-Appellant, v. June FANNING, as the Personal Representative of the Estate of Wayne Fanning, deceased, and June Fanning, and Northwest Homes, Inc., an Idaho Corporation, Defendants-Respondents.

No. 12342.

Supreme Court of Idaho.

June 4, 1979.

Rehearing Denied June 29, 1979.

Dennis L. Albers, Grangeville, for plaintiff-appellant.

William A. Stellmon of Ware, Stellmon & O'Connell, Steve R. Cox of Randall, Bengtson & Cox, Lewiston, for defendants-respondents.

BAKES, Justice.

This is an appeal from summary judgments against plaintiff appellant Dorothy McKinley. McKinley, who slipped and fell on a public sidewalk, sought to recover damages resulting from that accident. We reverse.

In 1969, June and Wayne Fanning were the owners of the Clearwater Hotel in Pierce, Idaho, and the Clearwater Cafe which was located in part of the hotel building. Wayne Fanning is now deceased. McKinley was the lessee, occupier and operator of the Clearwater Cafe from 1969 until 1972. During that time the Fannings hired Northwest Homes, Inc., to install on the building an awning which extended over the sidewalk in front of the cafe. Northwest Homes subcontracted the installation of the awning to Mel Drader, who performed the work in 1971. Because of the manner in which the awning was installed, water allegedly drained into one corner of the awning and then onto the sidewalk in front of the cafe. The record is clear that McKinley knew of the installation of the awning and that water drained from it onto the sidewalk. The record is also clear that McKinley was aware that because of this drainage ice occasionally accumulated on the sidewalk beneath the corner of the awning. The record indicates that the awning did not reach all the way to the curb, but lacked approximately 21/2 to 3 feet from covering the entire sidewalk.

In her deposition McKinley testified that on the date of the accident there was an accumulation of three to four inches of snow and slush on the street and on that portion of the sidewalk not covered by the awning and that there was an accumulation of ice on the sidewalk underneath the corner of the awning where water had drained onto the sidewalk. She testified that on the date of the accident she got out of her car, which was parked in front of the cafe, stepped up onto the sidewalk and took two or three steps to a point under the edge of the awning where she slipped and fell on ice which had accumulated from water draining off the corner of the awning. The injuries she sustained from the fall required surgery and ultimately required her to cease the operation of the cafe.

McKinley brought suit against the Fannings and Northwest Homes, alleging that her injuries were the result of Northwest Homes' negligent installation of the awning and the Fannings' negligent failure to correct the improper installation and to remedy the hazard it created. Both defendants moved for summary judgment, which the district court granted. McKinley appeals from those summary judgments.

Upon motion for summary judgment all facts and inferences must be construed most favorably toward that party against whom summary judgment is sought, and if any genuine issue of material fact remains unresolved summary judgment is improper. Gardner v. Hollifield, 97 Idaho 607, 549 P.2d 266 (1976); Farmer's Ins. Co. v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976); Southern v. Southern, 92 Idaho 180, 438 P.2d 925 (1968); I.R.C.P. 56(c). Factual issues of negligence and proximate cause are for the jury to resolve, not the Court. Ryals v. Broadbent Development Co., 98 Idaho 392, 565 P.2d 982 (1977). We conclude that there were unresolved issues of material fact which precluded the trial court from granting summary judgment in this case. As to the defendant Fanning, McKinley testified in her deposition that on several occasions she had advised Fanning that the awning had been improperly installed and had caused water to drain onto the sidewalk creating a dangerous condition. She alleged in her amended complaint that Fanning:

"negligently failed to correct the improper installation of said awning after having actual notice of the unreasonable hazard thereby created."

Furthermore, McKinley alleged in the amended complaint that the awning had been installed in violation of the municipal code of the City of Pierce, which provided that the roof of a marquee must "be sloped to downspouts which shall conduct any drainage from the marquee under the sidewalk to the curb" and that the construction of the awning violated this ordinance and was therefore negligence. Either of those two allegations raised factual issues which could not be resolved on summary judgment. Fanning's assertion on the motion for summary judgment that McKinley herself had violated a city ordinance requiring "the owner or tenant of any premises abutting or adjoining any public sidewalk to remove all snow and/or ice from such sidewalk" was not sufficient to defeat her claim for recovery. That assertion merely raised an issue of contributory negligence. Since the advent of comparative negligence, contributory negligence of the plaintiff is not grounds for granting summary judgment in favor of the defendant but requires the trier of fact to compare the contributory negligence of the plaintiff with that of the defendant. See I.C. §§ 6-801, -802.

Neither does the assertion that Fanning, as lessor, owed no duty to McKinley, the lessee, to prevent or remedy the hazardous condition because McKinley was aware of the danger supply adequate grounds for summary judgment. In this case the injury was allegedly sustained not as a result of a dangerous condition on the business premises of the cafe, but rather as the result of an allegedly dangerous condition on the public sidewalk abutting the cafe. Thus, the panoply of rules concerning the landowner's duties to persons on the property and the classification of those persons, such as trespassers, invitees, licensees and lessees, which are often made in those kinds of cases, See Springer v. Pearson, 96 Idaho 477, 531 P.2d 567 (1975), are inapposite here. See Tripp v. Granite Holding Co., 22 Utah 2d 175, 450 P.2d 99 (1969); Annot., 88 A.L.R.2d 331, 346-47 (1963). The duty of care involved in this case is that owed by a landowner to pedestrians using a public sidewalk abutting the property. Certainly Fanning, who was the owner of the entire premises, lessor of the cafe and apparently the possessor of the hotel, had a duty to pedestrians using the public sidewalk to exercise reasonable care not to create a dangerous condition on the sidewalk. Fanning had a further duty to remedy any dangerous condition which his alterations of the property had caused if it jeopardized safe passage on the public sidewalk. See Restatement (Second) of Torts, §§ 364, 378, 379A (1965); W. Prosser, Handbook of the Law of Torts, §§ 57, 63 (4th ed. 1971); Annot., 18 A.L.R.3d 428 (1968); Annot., 88 A.L.R.2d 331, 361-64, 411-16 (1963); 39 Am.Jur.2d, Highways, Streets, and Bridges, §§ 365, 369 (1968). Although McKinley was the lessee of the cafe, at the time of the accident she nevertheless was still a member of the public, a user of the sidewalk, and therefore a person to whom Fanning owed that duty of care. However, because McKinley was a lessee and may have had some knowledge of the dangerous condition, she may have had a separate duty to correct it, a knowledge and duty not chargeable to the ordinary pedestrian using the sidewalk. But this difference between McKinley and the more typical pedestrian does not relieve Fanning of the duty to use due care to avoid creating a hazard on the sidewalk, but only raises an issue of contributory negligence of McKinley which must be resolved by the jury, not the court on a motion for summary judgment.

The district court apparently granted summary judgment to Northwest Homes, Inc., the corporation with which the Fannings contracted for the construction of the awning, on the theory that Northwest Homes built the awning according to plans and specifications and that under the authority of Black v. Peter Kiewit Sons' Co., 94 Idaho 755, 497 P.2d 1056 (1972), it was therefore not responsible for any defect in the awning. The Black case, which was seriously questioned in Yellowstone Pipe Line Co. v. Grant Construction Co., 95 Idaho 794, 520 P.2d 249 (1974), involved a construction contract issued by a governmental entity, the State of Idaho, and presented a situation which is not present in this case since no governmental entity is involved. In any event, the rationale of Black presupposes a detailed contract whereby the contractor agrees to construct according to the stated plans and specifications. Here, a factual issue remains in this record whether the contract between Northwest Homes, Inc., and the Fannings required that the awning drainage be constructed exactly in the manner in which it was actually done. Therefore, summary judgment was improper on the present state of the record.

For the foregoing reasons the judgment of the district court granting summary judgment is reversed and the cause remanded for further proceedings. Costs to appellant.

DONALDSON and BISTLINE, JJ., concur.

BISTLINE, Justice, specially concurring.

In regard to the liability of contractors for injuries to third parties which resulted from negligent work, many courts have adopted the so-called "modern rule" of foreseeability:

(A) building or construction contractor is liable for injuries to or the death of third persons, occurring after the acceptance of the completed work by the contractee, where the work is reasonably certain to endanger third persons if negligently prepared or constructed. 13 Am.Jur.2d Building and Construction Contracts § 140 (1964).

This rule has been reached by analogy with and parallel to the identical development of law in the area of products liability:

(I)t is now the...