Personnett v. Great Atlantic & Pac. Tea Co.
| Decision Date | 04 June 1968 |
| Docket Number | No. 20598,No. 1,20598,1 |
| Parties | Harry PERSONNETT, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Inc., Appellee |
| Court | Indiana Appellate Court |
Jay N. Given, Michael E. Connelly, East Chicago, for appellant.
Lester Murphy, Jr., East Chicago, Murphy, McAtee & Murphy, East Chicago, of counsel, for appellee.
This appeal emanates from a ruling by the trial court granting summary judgment in favor of Appellee. Acts 1965, Ch. 90, § 1, p. 126; Burns Ind. Statutes, Vol. 2, Pt. 2, 1968 Repl. § 2--2524.
The judgment was entered March 7, 1966; the assignment of errors and transcript were filed June 3, 1966. The appeal is properly before us, pursuant to Indiana Supreme Court Rule 2--2 as amended, providing for direct appeal from summary judgments.
In substance, Appellant, plaintiff below, sought recovery for injuries sustained and income lost due to these injuries when he slipped and fell on an accumulation of ice and snow in front of Appellee's store.
Supporting its motion for summary judgment, Appellee submitted an affidavit to the trial court. It recited the lack of a common law duty on the part of abutting property owners to remove snow and ice deposited on their sidewalks by nature; if there is no duty to passersby there can certainly be no breach of that duty.
Appellee's affidavit correctly states Indiana common law. However, there was in existence at the time of Appellant's injury a city ordinance requiring an abutting property owner to remove the snow and ice for a space six feet wide in front of the building. Considering the ordinance with the facts at bar as alleged in the complaint, the situation bears a remarkable similarity to the case of Cowin v. Sears Roebuck and Co., (1955), 125 Ind.App. 624, 129 N.E.2d 131. The Court noted the non-existence of a common law duty to remove snow and ice; one injured by slipping on that accumulation must recover, if at all, on the theory of a duty imposed by a city ordinance requiring removal. That court denied the right of recovery, reasoning that such ordinances are not for the protection of individual travelers, but rather that they are for the benefit of the municipality.
'There being no common law duty on the part of abutting owners to remove snow and ice deposited on their sidewalks by nature alone it is apparent, that except for the ordinance in question, the appellee could have left the snow and ice complained of on its sidewalks indefinitely with entire impunity and inevitably,...
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