Patitucci v. City of Hill City

• Citation: 836 N.W.2d 623,2013 S.D. 62
• Decision Date: 14 August 2013
• Docket Number: No. 26516.,26516.
• Parties: Edna F. PATITUCCI and Anthony J. Patitucci, Plaintiffs and Appellants, v. CITY OF HILL CITY and Granite Sports, Inc., Defendants and Appellees.
• Court: Supreme Court of South Dakota

836 N.W.2d 623

2013 S.D. 62

Edna F. PATITUCCI and Anthony J. Patitucci, Plaintiffs and Appellants,

v.CITY OF HILL CITY and Granite Sports, Inc., Defendants and Appellees.

No. 26516.

Supreme Court of South Dakota.

Argued May 21, 2013.

Decided Aug. 14, 2013.

Jon J. Lafleur of Abourezk & Zephier, PC, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.

Kyle L. Wiese, James S. Nelson of Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee City of Hill City.

Jeffrey R. Connolly, J. Crisman Palmer of Gunderson, Palmer, Nelson & Ashmore, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee Granite Sports, Inc.

ZINTER, Justice.

[¶ 1.] Edna Patitucci was injured while walking on a sidewalk abutting Granite Sports, Inc. (Granite Sports), a sporting goods store in Hill City (City). The sidewalk also abutted a state/federal highway, which is the City's main street. Edna and her husband sued the City and Granite Sports for negligence. The circuit court granted summary judgment for both defendants, ruling that neither owed a duty of care relating to the sidewalk. Patituccis appeal. We reverse the summary judgment granted in favor of the City and affirm the summary judgment granted in favor of Granite Sports.

Facts and Procedural History

[¶ 2.] On August 21, 2009, Edna fell and fractured her wrist while walking on a split-level sidewalk in Hill City. The sidewalk abutted Granite Sports, which is located on U.S. Highway 16/385. The highway extends through the City as its main street. The upper sidewalk, which abutted businesses on the highway, was constructed by the State of South Dakota approximately sixty years ago. From 1995 to 1997, the State reconstructed the highway in the City. The upper sidewalk was not included in the reconstruction project. However, a curb and a narrow lower sidewalk were added at street level. This created a split-level sidewalk at various locations. There was an approximate six-inch difference in elevation between the upper sidewalk and lower sidewalk where Edna fell.

[¶ 3.] In August 2011, Edna and her husband sued the City and Granite Sports. They alleged negligence in failing to eliminate or reduce the risk of injury associated with the split-level sidewalk.

[¶ 4.] The City moved for summary judgment. It argued that it owed no duty to the Patituccis because it contended that it did not design, build, maintain, control, or own the sidewalk. The City contended that the State, through the Department of Transportation, designed, built, and controlled the sidewalk, which was within the highway right-of-way. The City relied on the affidavits of Brett McMacken, the City's administrator, and Art Anderson, the City's public works superintendent. McMacken indicated that the sidewalk was built and designed by the State at least sixty years ago, and both he and Anderson asserted that the sidewalk was controlled by and under the authority of the State.

[¶ 5.] Patituccis argued that the City controlled the sidewalk. Patituccis relied on a number of statutes authorizing municipalities to construct, improve, and control sidewalks within the municipality. Patituccis also contended that the City's control was demonstrated in a 1994 “maintenance and encroachment” agreement between the City and the State, as well as in the City's council meeting minutes and a City resolution relating to improvement of the sidewalk.

[¶ 6.] Granite Sports argued that it also owed no duty to the Patituccis. Granite Sports relied on an affidavit from its owner, Pat Wiederhold. He indicated that Granite Sports did not design, construct, or control the sidewalk. Granite Sports also pointed out that, as a business abutting a sidewalk, its duty was limited. And Granite Sports contended that it had no limited duty because its owner did not reside on the business premises, the City did not give Granite Sports notice that the sidewalk was in need of repairs, and Granite Sports did not alter or modify the sidewalk.

[¶ 7.] Patituccis, however, argued that Granite Sports could be secondarily liable to the City for damages under SDCL 9–46–2 if the City were found liable. Patituccis contended that it was necessary for Granite Sports to remain in the suit as a procedural matter because “[t]he City will cross-claim against Granite Sports, Inc. if it is determined that the City owed a duty to [Edna] to keep its sidewalk safe.”

[¶ 8.] The circuit court granted summary judgment for the City and Granite Sports. The court reasoned that neither defendant controlled the sidewalk. The court noted that “the location where Edna ... fell is located within the ... State's highway right-of-way[.]” Relying on the affidavits of McMacken, Anderson, and Wiederhold, the court also noted that “the [C]ity did not design, construct or control the sidewalk and ... the extent of Granite [Sports'] maintenance of the sidewalk in front of the store [was] snow removal and removal of debris.”

[¶ 9.] On appeal, Patituccis argue that both defendants owed them a duty to keep the sidewalk reasonably safe. They also argue that both defendants owed them a duty to warn of the sidewalk's dangerous condition. “The existence of a duty in a negligence action is a question of law subject to de novo review by this Court.” Locke v. Gellhaus, 2010 S.D. 11, ¶ 11, 778 N.W.2d 594, 597.

The City

[¶ 10.] Patituccis contend that the City's control and concomitant duty is evidenced in several statutes, the 1994 maintenance and encroachment agreement, and the City's acts to improve the sidewalk. Patituccis contend that the City had a duty to keep the sidewalk reasonably safe even though it was within a state highway right-of-way.

[¶ 11.] The City “does not dispute that if it had control over the sidewalk, [it] would be responsible for designing, constructing, maintaining, and repairing the sidewalk.” However, the City argues that the State, rather than the City, had control of the sidewalk abutting the highway. The City contends that “without control, [it] cannot be liable for the State's failure to redesign and reconstruct the split-level sidewalk.” We agree that municipal control is necessary to impose a municipal duty of care with respect to sidewalks. But we conclude that under the relevant statutes, the City had sufficient control to impose a duty of care.

[¶ 12.] A number of statutes vest municipalities with control of sidewalks within their municipal boundaries. SDCL 9–45–1 grants municipalities authority to construct, improve, and repair sidewalks in the municipality. And SDCL 9–30–2 grants municipalities authority to control the use of those sidewalks.¹ Further, SDCL chapter 9–46 grants municipalities broad authority to require improvements that the municipality deems necessary for the sidewalks within its boundaries. Indeed, SDCL 9–46–3 specifically authorizes municipalities to notify landowners to construct, rebuild, or repair sidewalks when the municipality “deems it necessary to construct, rebuild, or repair any sidewalk[.]” ² Significantly, none of these broad grants of authority and control are limited when the sidewalk is within a State highway right-of-way in the municipality. This Court has specifically noted that under these statutes, “the legislature has given much authority to municipalities to deal with sidewalks within their boundaries.” City of Sioux Falls v. Murray, 470 N.W.2d 619, 620 (S.D.1991). Thus, there is ample authority to conclude that the City had control of sidewalks within its municipal boundaries.³

[¶ 13.] We also observe that the 1994 maintenance and encroachment agreement reflects that the City and State believed the City had control of the sidewalk where Edna fell. Prior to the reconstruction of the highway in 1995, the City and State entered into the 1994 agreement. In the agreement, the City agreed to certain conditions regarding encroachments, utilities, speed limits, parking, curbs, highway access, lighting, and pavement markings for the highway right-of-way. Tellingly, in the recitals, the City and State acknowledged that: “[T]he section of the [highway reconstruction project] within the Municipality ... is within the legal jurisdiction of the Municipality for traffic regulations and the control of building setbacks, zoning, sidewalks, utilities, etc.” (Emphasis added.)

[¶ 14.] The City acknowledges this language in the 1994 agreement as well as its general statutory authorization to control sidewalks. But the City argues that the State had control of this sidewalk because it was in the State highway right-of-way. The City points out that this highway and sidewalk were built and modified by the State. The City also points out that this sidewalk is within the State highway right-of-way, which is part of the state trunk highway system.⁴ Therefore, the City argues that the State had control under SDCL 31–4–14, which provides that “[a]ll marking, surveying, construction, repairing, and maintenance of the state trunk highway system is under the control and supervision” of the State. See alsoSDCL 31–1–5(1) (providing that the state trunk highway system is comprised of highways “controlled and supervised by the [State] Department of Transportation”). The City ultimately contends that the State's control over this state trunk highway includes control of the sidewalks in the highway right-of-way. We disagree.

[¶ 15.] The City's argument overlooks the definition of highways within the state trunk system. SDCL 31–1–1 defines those “highway[s]” as “[e]very way or place of whatever nature open to the public ... for purposes of vehicular travel[.]” Because a city sidewalk is not open to the public for purposes of vehicular travel, the State's control over the vehicular portion of U.S. Highway 16/385, as granted in SDCL 31–4–14 and 31–1–5(1), does not supplant the statutes granting the City control of the sidewalk. As the Connecticut Supreme Court explained:

Ordinarily,...