New Highland Recreation, Inc. v. Fries

• Citation: 229 A.2d 89,246 Md. 597
• Decision Date: 05 May 1967
• Docket Number: No. 261,261
• Parties: NEW HIGHLAND RECREATION, INC. v. Ruth Mary FRIES et vir.
• Court: Court of Appeals of Maryland

Page 597

246 Md. 597

229 A.2d 89

NEW HIGHLAND RECREATION, INC. v. Ruth Mary FRIES et vir.

No. 261.

Court of Appeals of Maryland.

May 5, 1967.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellant.

Harold Buchman, Baltimore, for appellee.

Before HORNEY, MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

MARBURY, Judge.

New Highland Recreation, Inc., appellant, has appealed from the judgments entered by Judge Cullen, presiding without a jury, in the Baltimore City Court, in favor of Ruth M. Fries and her husband, James Fries, appellees. Mrs. Fries had sustained injuries as the result of a slip and fall on ice in a path on the public sidewalk which had been cleared of snow by employees of the appellant. Appellant owned a bowling establishment abutting the public sidewalk where Mrs. Fries fell.

The accident occurred on February 1, 1963. Two days before the accident it had snowed, and a path about two feet wide had been cleared in the center of the public sidewalk by employees of appellant. At the time of the accident, the snow piled on the curb side of the sidewalk was about six or eight inches high, and it was about four inches high on the opposite side of the path. Appellant's building faced north on Fleet Street, an east-west street in Baltimore City. The sidewalk on which the path was cleared sloped toward the east where an alley was located.

At about nine o'clock on the evening of the accident, Mrs. Fries parked her car on the north side of Fleet Street, crossed the street, stepped over the snow piled on the curb to the cleared path, and walked to the entrance of the bowling establishment and entered. She noticed that the path was slushy, but she stated that she had no difficulty walking. When she left the building, at about midnight, the temperature had dropped below freezing. She noticed that the path had frozen over and was icy.

When she left the building, Mrs. Fries was accompanied by Mr. and Mrs. Charles Frank. Because of the icy conditions, Mr. Frank walked in the path while Mrs. Frank walked at his left and Mrs. Fries walked at his right so that the two women would be partially or wholly in the snow where the footing was better. After walking from the building exist almost to the alley at the east end of the building, Mr. and Mrs. Frank took leave of Mrs. Fries and turned left to cross the street. Mrs. Fries continued on for a short distance and then turned to her left to reach the street. As she crossed the path she slipped and fell. She had not reached the snow piled between the path and the curb. The pile at the curb had nothing to do with her fall. At the time she fell, she was wearing loafers and was carrying her purse and her bowling bag.

The testimony of Leo Scales, who was appellant's assistant manager at the time of the accident, revealed that when he arrived for work at about 6:00 p. m. on February 1, the path had been cleared, but that he did not remember its condition. He stated that he saw ice and snow around. At times employees of appellant would put rock salt on the icy pavement, but had not done so on the day of the accident.

The court below held that because appellant had caused or created a nuisance or obstruction in a public street or sidewalk by allowing ice and snow to remain on the sidewalk after it had attempted to remove the snow and ice, appellant was liable for damages to anyone injured as the result of a slippery condition caused by the snow and ice.

It is the general rule that an owner or occupant is under no duty to pedestrians to maintain the public sidewalk abutting his land free from the natural accumulation of snow and ice and that he is not liable to pedestrians for failure to clear the abutting sidewalk even where a statute or ordinance requires that the pavement be kept free of snow and ice. Dorsch v. S. S. Kresge Company, Md., 226 A.2d 899; Weisner v. Mayor and Council of Rockville, 245 Md. 225, 225 A.2d 648; Leonard v. Lee, 191 Md. 426, 62 A.2d 259. See 82 A.L.R.2d 998. ¹ Nor is an abutting owner liable in clearing the public sidewalk of snow and ice, unless through his negligence a new element of danger or hazard, other than one caused by natural forces, is added to the use of the sidewalk by a pedestrian. See Valente v. United States, 264 F.2d 800 (6th Cir. 1959); Rosenblum v. Economy Grocery Stores Corp., 300 Mass. 264, 15 N.E.2d 189 (1938); Taggart v. Bouldin, 111 N.J.L. 464, 168 A. 570 (1933); Gentile v. National Newark & Essex Banking Co., 53 N.J.Super. 35, 146 A.2d 471 (1958); Kelley v. Park View Apartments, Inc., 215 Or. 198, 330 P.2d 1057, 71 A.L.R.2d 784 (1958). Cf. Dorsch v. S. S. Kresge Company, supra; Flynn v. Canton Co., 40 Md. 312. The issues to be decided are whether the evidence is sufficient to show that appellant negligently cleared a path through snow on the sidewalk so as to add a new element of danger of hazard, and whether the evidence was sufficient to show notice of the icy conditions.

The slush that Mrs. Fries found on the path may have been the result of the thawing and freezing of the snow piled along the sides of the path, or the result of snow having been tracked onto the path by pedestrians. There was no evidence that the slush was on the path as a result of the work of removing the snow having been negligently performed. Dorsch v. S. S. Kresge Company, supra. The mere fact that water from melting snow, which had been cleared from the public sidewalk and piled along the side of the path, flowed over the cleared portion and froze was not sufficient to show that appellant, in clearing the sidewalk in the manner it did, created a nuisance or artifically brought about a condition which increased or changed the flow of water at the place where Mrs. Fries fell. Valente v. United States, supra; Hecht Co. v. Hohensee, 65 App.D.C. 328, 83 F.2d 585 (1936); Riccitelli v. Sternfeld, 1 Ill.2d 133, 115 N.E.2d 288 (1953); Rosenblum v. Economy Stores Corp., supra; Mahoney v. Perreault, 275 Mass. 251, 175 N.E. 467 (1931); Taggart v. Bouldin, supra; Kelley v. Park View Apartments, Inc., supra. A divergent view seems to have been taken by some New York cases. See cases collected in 71 A.L.R.2d 793, 799.

In Mahoney snow had been shovelled off the concrete sidewalk in front of defendant's premises and placed upon a grass plot or tree belt near the curb. Evidence tended to show that the inner edge of the sidewalk was slightly lower than at the curb. The Court in finding no sufficient evidence to prove negligence said:

'If we assume that it could be found that the water which ran over...