Olsen v. Macy
| Decision Date | 24 June 1959 |
| Docket Number | No. 6420,6420 |
| Citation | 340 P.2d 985,86 Ariz. 72 |
| Parties | Frances Hendrickson OLSEN, Appellant, v. Neil MACY and Beth Macy, his wife, Appellees. |
| Court | Arizona Supreme Court |
O'Reilly & Bergman, Phoenix, for appellant.
Charles L. Hardy, Phoenix, for appellees.
This is an appeal from a summary judgment entered by the trial court on September 20, 1956 against appellant (plaintiff below) and in favor of appellees (defendants below). The parties will be designated as plaintiff and defendants as they appeared in the trial court.
Plaintiff's cause of action is based upon the alleged negligence of defendants in failing to maintain a sidewalk in front of their business premises in a safe condition for use by the public including plaintiff. Defendants in their answer denied that they owed any duty to plaintiff to keep the sidewalk repaired, and alleged that said sidewalk was not a public sidewalk but was wholly constructed with their funds and owned by defendants for their use and their business invitees, and that it is exclusively upon their property.
The trial court granted defendants' motion for summary judgment based upon the pleadings, plaintiff's deposition, two photographs showing the concrete sidewalk in front of defendants' premises and the sidewalk in front of the adjoining property, and a blueprint map further showing the relative locations of the sidewalks to each other and to the buildings they fronted, and to Dunlap Street in Sunnyslope.
The specific spot where plaintiff alleges she sustained her injuries was near the eastern end of the sidewalk on defendants' premises. At that point there existed a drain or opening extending across the entire width of the sidewalk four to eight inches deep and six to eight inches in width. This opening was due to the failure of defendants to place a grate over the opening. The photographs would indicate that the opening was left in order to take care of the drainage into the streets of water accumulating between the buildings as the sidewalks appear to be several inches higher than the surface of the earth between the two buildings. Plaintiff alleges she stepped into this 'hole' at about 1 o'clock a.m. in returning to their car from the Eagle Hall located west of defendants' property; that there were no lights and in the darkness she could not see the opening and had never been there before.
Plaintiff has assigned the granting of summary judgment as error upon the ground that an owner of land cannot use it in a manner to cause injury to others. It is also based upon the further proposition that where the owner of property maintains an established way across it under circumstances inducing belief that the way is public in nature, he owes a duty to exercise ordinary care in maintaining the way in a reasonably safe condition for use by the public until he in some proper manner clearly evidences an intent to withdraw it from such use. The second assignment is based upon the further ground that there was an expressed or implied invitation extended by the landowner for the public to use the established way.
The question of whether defendants owed plaintiff any duty to keep their sidewalk in front of their business premises safe for use by her depends upon whether there was an implied invitation extended...
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City of Phoenix v. Whiting
...the amendment clarified the meaning to be in accordance with the above partial quotation of the Rule. It is urged that Olsen v. Macy, 86 Ariz. 72, 340 P.2d 985 (1959) holds that a motion to dismiss filed under the circumstances before the Court in the case now under review was waived. In ou......
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Fendler v. Texaco Oil Co., 1
...public areas can only be undertaken by public officials. As authority for this proposition, appellant cites two cases: Olsen v. Macy, 86 Ariz. 72, 340 P.2d 985 (1959) and Amalgamated Food Emp. Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). Olsen d......
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Williams v. Williams
...complaint does not state a claim against a defendant the only motion available to the defendant is a motion to dismiss. Olsen v. Macy, 86 Ariz. 72, 340 P.2d 985 (1959). However, a court should not grant a motion to dismiss unless it appears certain that a plaintiff would be entitled to no r......
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Harris v. Buckeye Irr. Co.
...discussing the facts as developed by the summary judgment appeal in the first Harris case, quoted with approval from Olsen v. Macy, 86 Ariz. 72, 340 P.2d 985 (1959), as We find the law to be that if an owner or occupant of property has permitted persons generally to use or establish a way a......