Norman v. City of Gillette

• Decision Date: 08 February 1983
• Docket Number: No. 5727,5727
• Citation: 658 P.2d 697
• Parties: William D. NORMAN, Appellant (Plaintiff), v. CITY OF GILLETTE, a municipal corporation; Leroy A. Noecker; James D. Noecker; and Noecker Enterprises, a limited partnership, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 697

658 P.2d 697

William D. NORMAN, Appellant (Plaintiff), v. CITY OF GILLETTE, a municipal corporation; Leroy A. Noecker; James D. Noecker; and Noecker Enterprises, a limited partnership, Appellees (Defendants).

No. 5727.

Supreme Court of Wyoming.

Feb. 8, 1983.

William D. Norman and Earl R. Johnson (argued), Casper, signed the brief for appellant.

Anthony A. Johnson of Rector, Retherford, Mullen & Johnson, Colorado Springs, Colo., for appellee, City of Gillette.

John C. Brooks of Vlastos, Reeves & Murdock, P.C., Casper, for appellees Noeckers and Noecker Enterprises.

Before ROONEY, C.J. ^* , and RAPER, THOMAS, ROSE ^** and BROWN, JJ.

ROSE, Justice.

PART I

The issue presented by this appeal is whether a city and an adjoining landowner will be liable for an injury to a pedestrian who, because of a barricade on the sidewalk, undertakes to walk in the street where he slips and falls while traversing a mound of snow and ice. The district judge granted summary judgment for both the city and the parties who owned the adjoining land around whose property the barricade was erected. The court will affirm.

The opinion of the court is divided into two parts because of a division on the court. Part I furnishes an introduction to the issues and deals with propriety of the summary judgment entered in favor of appellee-landowners, Noecker Enterprises, and Leroy A. and James D. Noecker. Part II, furnished by Justice Raper, will deal with the propriety of the summary judgment entered in favor of appellee City of Gillette.

In reviewing the propriety of a summary judgment, we look at the record from the viewpoint most favorable to the party opposing the motion, giving that party all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions. Dubus v. Dresser Industries, Wyo., 649 P.2d 198 (1982); Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981); Miller v. Reiman-Wuerth Co., Wyo., 598 P.2d 20 (1979). Against this standard, the relevant facts in this appeal show that on February 9, 1979 the appellant Norman broke his leg when he stepped into a hole in a pile of snow located in the gutter of a street in the City of Gillette.

Mr. Norman testified that he was walking along a cleared sidewalk when he encountered a barricade which blocked the Norman brought suit against both Leroy and James Noecker, Noecker Enterprises and the City of Gillette, alleging that the Noeckers and defendant Noecker Enterprises had negligently barricaded the sidewalk and that the city had failed to maintain the sidewalk and street so as to provide Norman with a safe alternate walkway. All defendants filed separate answers denying the allegations of the complaint and alleging negligence on the part of appellant. The case was submitted to the court on defendants' motions for summary judgment which were granted.

sidewalk. The barricade had been constructed for purposes of protecting pedestrians from danger associated with the erection of a building on the appellees Noeckers' property. When confronted by the obstruction, the appellant stepped from the curbing into the street and, in so doing, was obligated to step over a mound of snow some 18 inches in height, whereupon his foot caught in a hole or depression causing him to fall.

We recently reiterated the rules of this court applicable to appeals from summary judgment in Dubus v. Dresser Industries, supra, where we said:

"We have said many times that when reviewing the granting of summary judgment on appeal

" ' "... [W]e have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did...." Seay v. Vialpando and Anderson, Wyo., 567 P.2d 285, 287; Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244, and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685. Timmons v. Reed, Wyo., 569 P.2d 112, 115 (1977).

"In contemplating an appeal from a summary judgment we must also inquire from the viewpoint most favorable to the party opposing the motion. Timmons v. Reed, supra, 569 P.2d at 116; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387 (1977); Bluejacket v. Carney, Wyo., 550 P.2d 494, 497 (1976). It is settled that, in a summary judgment proceeding, the moving party has the burden of proving the absence of any genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792 (1970); Kover v. Hufsmith, Wyo., 496 P.2d 908, 910 (1972). Finally, we are reminded that negligence claims do not lend themselves readily to summary adjudication. See: Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352 (1974); Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57 (1963)." 649 P.2d at 201.

Although there is a division of the court on the applicability of our previous decisions setting out rules covering known and obvious dangers and natural accumulations of snow and ice, Sherman v. Platte County, Wyo., 642 P.2d 787 (1982), ¹ there is no disagreement that in order to be found negligent, in any event, it must be shown that appellees owed a duty of reasonable care to appellant that may have been breached. Of course, if neither the city nor the Noeckers owed a duty of care to Mr. Norman, then we must affirm the granting of the summary judgment. In order to make out a cause of action in negligence, a plaintiff must be able to identify a duty of reasonable care, the breach of which has caused his injury and attendant damage. See: ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981); Beard v. Brown, Wyo., 616 P.2d 726 (1980); Danculovich v. Brown, Wyo., 593 P.2d 187 (1979). We will now address the question of duty as it relates to the Noeckers.

Appellant argues that Noecker Enterprises and Leroy and James Noecker were negligent in failing to provide him with a safe walkway around the barricade, or, in the alternative, that they negligently barricaded the sidewalk. The appellees answer these contentions by denying any negligence In pursuing his claim that the Noeckers negligently barricaded the sidewalk or failed to keep the same safe for pedestrian travel, appellant relies on various ordinances of the City of Gillette. First of all, he relies on several ordinances which required the Noeckers, as abutting property owners, to remove snow from the sidewalk adjoining their property within 24 hours of the snowfall and that failure to do so would result in the city's undertaking the work for which it would charge the landowner. ² Mr. Norman then argues that this duty imposed an obligation upon the Noeckers to provide him with an alternative walkway which, by ordinance, they were obligated to keep clear of ice and snow.

and by asserting no duty on their part to provide an alternative walkway. We agree with the Noeckers' position in this regard.

Appellant is correct in asserting that we have held that ordinances such as those cited impose a duty upon adjoining landowners to remove natural accumulations of snow and ice from sidewalks even though no such duty existed at common law. See: Johnson v. Hawkins, supra, 622 P.2d at 943. However, in the present case, the appellees had barricaded the sidewalk with the knowledge and permission of the City of Gillette; and once that occurred, they had no duty to keep the barricaded sections of the sidewalk free and clear of snow since the barricade was intended to prevent pedestrian traffic thereon. Therefore, the only question for our consideration asks whether the Noeckers, having barricaded the sidewalk, ³ nonetheless had a duty to provide appellant with a safe alternate walkway. If they did have such a duty, then, of course, the duty to remove snow imposed by the ordinance could be applied to the alternate walkway which the appellees intended would be utilized by pedestrians during construction of the building.

As a general rule, a contractor who undertakes a project in or near a sidewalk or street is under a duty to exercise reasonable care for the protection of those rightfully in the proximity of the work. However, the duty is, for the most part, one of placing sufficient barricades or warning devices around a dangerous obstruction or excavation. Albright v. McElroy, 207 Kan.

233, 484 P.2d 1010, 1019 (1971). The duty is breached when the contractor is negligent in barricading or warning the public of danger. Notwithstanding this duty, we have found no cases that would support appellant's claim that the Noeckers were required to provide or construct an alternate walkway.

In our search of the law we came upon several cases involving accidents or injuries occurring on temporary walkways, but in each instance a city ordinance required the contractor to provide the walkways. See: Dougherty v. Charles H. Tompkins Co., 99 App.D.C. 348, 240 F.2d 34 (D.C.Cir.1957); Gaw v. Hew Construction Company, 300 Mass. 250, 15 N.E.2d 225 (1938); 39 Am.Jur.2d, Highways, Streets and Bridges § 548, p. 955 and annotations noted. In the absence of an ordinance requiring the construction of an alternative passageway, the proper rule to be applied is that set out in Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169, 174 (1967):

"It is contended by the plaintiffs that the defendant contractors were negligent in failing to close the street and sidewalk during this construction. They assert that failing to so act placed them under a duty to construct a temporary walkway around the obstruction in the sidewalk and that their failure to provide such temporary walk constituted a breach of that duty. In the syllabus of Nester v. United Foundation Corporation and Town of Ridgeley, 136 W.Va. 336, 67 S.E.2d 533, 29 A.L.R.2d 871, this Court said: 'No duty exists on the part of a contractor to provide or maintain a temporary way or detour around an obstruction of a street within a municipality, resulting from excavation work done by the contractor with permission of the municipality, in the absence of a contract or special circumstances.' "

We also find the rationale...