Nelson v. City of Tacoma

• Decision Date: 18 April 1978
• Docket Number: No. 2682-III,2682-III
• Citation: 19 Wn.App. 807,577 P.2d 986
• Parties: Nels B. NELSON, Jr., Appellant, v. CITY OF TACOMA, a Municipal Corporation, Respondent.
• Court: Washington Court of Appeals

Page 807

19 Wn.App. 807

577 P.2d 986

Nels B. NELSON, Jr., Appellant, v. CITY OF TACOMA, a Municipal Corporation, Respondent.

No. 2682-III.

Court of Appeals of Washington, Division 3, Panel 3.

April 18, 1978.

John R. Kramer, Hoff & Cross, Tacoma, for appellant.

William R. Hickman, Reed, McClure, Moceri & Thonn, P. S., Seattle, for respondent.

ROE, Judge.

About a foot of snow fell on Tacoma 10 or 11 days prior to February 2, 1972, on which day the plaintiff, a pedestrian, was injured as he slipped on an icy street. He was not walking on the sidewalk, from which the snow had not been removed, nor was he walking in the street at a corner crosswalk. On that morning, he parked his car and walked across the street at mid-block to his office building on "C" Street between Delin Avenue and South 23rd. About 4 hours later, as he was walking the same route back to his car, he slipped and fell. He seeks to hold the city liable. A summary judgment was granted in favor of the defendant.

The question is: What duty does the city owe to a pedestrian jaywalking in a street, assuming the sidewalks were covered with a foot of snow? Excluding the snow, there was no physical defect in the street or sidewalk.

Plaintiff contends that, because the snow had not been removed from the sidewalks, they were impassable; hence, he was forced to use the street. However, he was not walking in the street parallel to the sidewalk towards a crosswalk. There was no showing that the steep grade of the street was a contributing cause of the slip and fall. No city ordinance was pleaded or proved.

As to sidewalks, in 19 E. McQuillin, Municipal Corporations, § 54.84 (3d ed. 1967), it is stated:

Ordinarily, snow or ice upon a sidewalk is not to be classed with dangerous obstructions such as a municipality is required to remove. It is generally held that a natural and ordinary accumulation of snow and ice on sidewalks creates no municipal liability for injuries occasioned thereby, unless with respect thereto the municipality is in some manner negligent by disregarding its obligation to exercise ordinary care to keep its sidewalks in fit condition for usual travel. . . .

. . . Municipal liability may arise if the snowy or icy sidewalk itself was defective, or the ice or snow, formed into ridges, drifts or hillocks, amounted to a dangerous obstruction to travel, the element of knowledge being shown.

The authorities indicate that the rules of liability vary from state to state. One of the first cases in Washington is Calder v. Walla Walla, 6 Wash. 377, 33 P. 1054 (1893), where the court states at 378, 33 P. at 1055:

The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk. If the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care, there is no liability . . . (T)here was . . . testimony which showed that the accident was due to the slipperiness and smoothness caused by the ice upon the walk; and the defendant's first instruction, requesting the court to instruct the jury that "mere slipperiness of the sidewalk, occasioned by ice or snow, not being accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby," should have been given, . . .

(Citations omitted.)

As to streets the rule was set out in Owens v. Seattle, 49 Wash.2d 187, 191, 299 P.2d 560, 562 (1956), where an automobile had run into a large pool of water on the street:

A municipality is not an insurer against accident nor a guarantor of the safety of travelers. It is, however, obligated to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety. . . . Where this duty is not fulfilled, the municipality is negligent . . .

(Citations omitted.) Mere slippery condition of a street due to natural causes is not actionable, at least where adequate warning is given. Nelson v. Seattle, 16 Wash.2d 592, 134 P.2d 89 (1943).

Plaintiff relies on Hartley v. Tacoma School Dist. No. 10, 56 Wash.2d 600, 354 P.2d 897 (1960). In that case negligence was held to be a jury question where the plaintiff slipped on a sidewalk which was icy, rough, and slippery. The case arose from a fall on a sidewalk, not a street, and there was evidence of more than mere slipperiness.

Squillace v. Village of Mountain Iron, 223 Minn. 8, 26 N.W.2d 197 (1946), is extensively argued by both parties in their briefs. In that case, the sidewalks were clogged and obstructed with snow to a height of 4 to 6 feet, making them impassable for pedestrians. This forced them to walk in the street. A bank of snow...