Parra v. F. W. Woolworth Co., Inc.

• Decision Date: 05 January 1977
• Docket Number: No. 6573,6573
• Citation: 545 S.W.2d 596
• Parties: Guadalupe PARRA, Appellant, v. F. W. WOOLWORTH COMPANY, INC. and the Border Tobacco Company, Inc., Appellees.
• Court: Texas Court of Appeals

Page 596

545 S.W.2d 596

Guadalupe PARRA, Appellant, v. F. W. WOOLWORTH COMPANY, INC. and the Border Tobacco

Company, Inc., Appellees.

No. 6573.

Court of Civil Appeals of Texas,

El Paso.

Jan. 5, 1977.

Mauro Rosas, El Paso, for appellant.

Kemp, Smith, White, Duncan & Hammond, W. Royal Furguson, Jr., Scott, Hulse, Marshall & Feuille, Stephen B. Tatem, Jr., El Paso, for appellees.

OPINION

WARD, Justice.

Guadalupe Parra sued for personal injuries she received when she fell on a City of El Paso sidewalk. The Defendants are the adjoining property owner and its tenant. The one point on this appeal is whether the Ordinances of the City of El Paso have created a cause of action in favor of the pedestrian against the abutting landowner for a failure to maintain the City sidewalk in repair. We hold that the Ordinances have not created such a cause of action and affirm the judgment of the trial Court.

The sidewalk is located on the North side of Paisano Drive between Stanton Street and an alley, and it was stipulated that the sidewalk belongs to the City of El Paso. The sidewalk runs parallel to the South side of a building owned by the Defendant, The Border Tobacco Company, and occupied by Defendant F. W. Woolworth Company, Inc. The opening to the building is on its East side where it fronts on Stanton Street. There is also an opening into the building at the rear end on the alley. There is no opening onto the South side where it adjoins the sidewalk. The Plaintiff admits that neither of the Defendants had made a 'special use' of the sidewalk; that neither of them had created the complained of defect in the sidewalk; and that the City of El Paso had never given written notice to either Defendant of the need to repair and eliminate any condition existing in the sidewalk. The Plaintiff testified that she was walking with a friend on her way to lunch on March 1, 1972, when she either slipped on a crack or her foot hit a bump or patch on the sidewalk and she fell.

The applicable provisions of the Charter and Ordinances of the City of El Paso were stipulated by the parties as being in existence and valid on the date in question. Section 568 City of El Paso Charter, gives complete and exclusive control to the City Council over the streets, alleys and highways of the City. Section 58 of the Charter gives to the City Council full power to keep in repair any sidewalk within the limits of the City, and also provides for the defraying of costs and expenses thereof and the manner in which notice is to be given to the owner of the property adjoining said sidewalk. Section 93 of the City of El Paso Charter gives to the City the power to repair sidewalks and to punish for an obstruction or encroachment thereon. Section 97, City of El Paso Charter, empowers the City to inspect and remove encumbrances from sidewalks. Section 19--13, City of El Paso Code, precludes any person from constructing or altering any sidewalk or street without permission of the City Engineer, which must be in accordance with specifications prescribed by him. Section 19--13.1 City of El Paso Code, limits the construction of a sidewalk by the owner of the abutting property to the order and direction of the City Engineer. Finally, there is Section 19--14.1 of the City of El Paso Code. This ordinance is entitled 'Maintenance of sidewalks, curbs and gutters, duty of owners of abutting property; notice to be given; costs to be assessed; penalties.' It contains the following provisions:

'(a) It shall be the duty of the owner of property abutting on any public street containing a sidewalk, curb or gutter to keep such sidewalk, curb or gutter in repair.

'(b) When the building official finds that any such sidewalk, curb or gutter is in hazardous condition because of need of repairs or faulty construction, he may notify the owner of the abutting property to make such repairs or changes as may be necessary to put the sidewalk, curb or gutter in safe condition. If the owner fails to make such repairs or changes within a reasonable time given in the notice, he shall be deemed guilty of a misdemeanor and punished as provided in section 1--6 of this Code.

'(c) If the owner fails to comply with the notice, the city council may authorize the work to be done by city forces or by contract, and may, after reasonable notice and opportunity to be heard, assess the actual cost of the repairs against the abutting property and its owner. The resolution of the city council making the assessment shall be recorded in the county clerk's office and the assessment shall then constitute a lien against the property.'

With the evidence in the record as outlined and the stipulations as made, the Defendants filed special exception to the Plaintiff's petition and a plea in abatement, because the petition and the evidence showed that a...