Pinnacle Bank v. Villa

• Decision Date: 30 November 2004
• Docket Number: No. 03-234,03-234
• Citation: 2004 WY 150,100 P.3d 1287
• Parties: PINNACLE BANK, a National Banking Corporation, Appellant (Defendant), v. ROSEMARY L. VILLA, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2004 WY 150

100 P.3d 1287

PINNACLE BANK, a National Banking Corporation, Appellant (Defendant), v. ROSEMARY L. VILLA, Appellee (Plaintiff).

No. 03-234

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

November 30, 2004

Representing Appellant: Patrick T. Holscher of Schwartz, Bon, Walker & Studer, LLC, Casper, WY. Argument by Mr. Holscher.

Representing Appellee: Bradley D. Bonner and Laurence W. Stinson of Bonner Stinson PC, Powell, WY. Argument by Mr. Bonner.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶1] This case comes before this court as two certified questions from the District Court, Fifth Judicial District, State of Wyoming. We are asked to consider whether a city ordinance addressing the removal of snow and ice establishes the applicable duty of care or whether Wyoming's common law regarding the natural accumulation of snow and ice applies. We are additionally asked to consider whether the State of Wyoming is to be included in the comparative fault analysis even though the State is immune from suit in these circumstances.

ISSUES

[¶2] The certified questions are:

1. Is the following finding of the district court correct?

The City of Worland municipal ordinance establishes the duty of [Appellant Pinnacle] Bank under the circumstances of this case and it is the Court's intention to instruct the jury as to the standard of care pursuant to the City of Worland municipal ordinance, and not on the common law rules pertaining to natural accumulation of snow and ice. The Court finds that the city ordinance, which is a specifically enacted rule, controls over the general common law rules pertaining to natural accumulation.

2. Whether the Defendant is not entitled to compare the fault of the State of Wyoming for the purposes of W.S. § 1-1-109 because the State is, pursuant to the Wyoming Governmental Claims Act, absolutely immune from recovery under these circumstances.

FACTS

[¶3] The district court's certification order sets forth a brief statement of facts relevant to the certified questions.

1. . . . Villa fell on the sidewalk in front of Pinnacle Bank on November 10, 1998. [Villa's] fall was caused by an accumulation of ice in front of the Pinnacle Bank Building. [Villa] contends that the ice was formed by improper drainage off the facade of the building. [Pinnacle Bank] contends that the ice formed as a natural accumulation of frozen water.

2. The City of Worland has a municipal ordinance governing sidewalks such as the one upon which [Villa] fell which reads as follows:

It shall be the duty of the occupant of any premises within the city limits or, in case the same are unoccupied, then the owner or his agent to keep the sidewalks in front of and adjoining his premises safe and clear for pedestrians and to repair the same from time to time. Such occupant, owner or agent shall, with all reasonable dispatch, remove snow, ice, slush, mud or other impediment to safe and convenient foot travel. Every person failing to comply with the provisions of this section shall be deemed guilty of committing a nuisance and, upon conviction thereof, shall be fined.

3. . . . [Pinnacle] Bank owns the sidewalk.

Additionally, Pinnacle Bank claimed that the State negligently designed and constructed the sidewalk as part of a project on a state highway easement.

[¶4] When making its ruling encompassed in the certified question, the district court noted that the reasoning for its ruling was more thoroughly set forth in its Order on Motions In Limine and Legal Trial Issues. That order stated:

3. The Court has been called upon to determine the governing standard under Wyoming law for [Pinnacle Bank's] duty to remove accumulations of snow, ice and the like. [Villa] asserts that a City of Worland ordinance concerning removal establishes [Pinnacle Bank's] duty, and that the common law rules pertaining to natural and unnatural accumulations of snow and ice do not therefore apply. [Pinnacle Bank] argues the opposite, that the rules of natural and unnatural accumulation control and the City of Worland ordinance has no role in establishing [Pinnacle Bank's] duty here. Looking at the history of cases determined by the Wyoming Supreme Court which discuss similar city ordinances, and the history of cases on the natural accumulation rule, the Court determines in this matter that the City of Worland ordinance does in fact impose a duty upon [Pinnacle Bank], and it would appear that it should be a question for the jury to make a determination as to whether [Pinnacle Bank] did in fact remove the hazard with all the reasonable dispatch as required by the ordinance. The Court rules that the ordinance does in fact set the standard of care, and the jury will not be instructed on the natural and unnatural accumulation rules.

Additionally, for the same reasons the jury will not be instructed on natural and unnatural accumulation, the jury will not be instructed on the "open-and-obvious-danger" rule. Like the natural accumulation rule, the purpose of the open-and-obvious-danger rule is to determine a party's duty of care to warn of or remove a hazard under a certain circumstance. Here, however, that duty already is established by the City of Worland ordinance. Accordingly, the only role for the open-and-obvious-danger rule in this case will be for purposes of arguing comparative fault of [Villa].

STANDARD OF REVIEW

[¶5] We review certified questions pursuant to W.R.A.P. 11. Under this rule, we are asked to settle questions of law in which it appears there is no controlling precedent from this court. W.R.A.P. 11.01. "[Q]uestions of the application of the law, including identification of the correct rule, are considered de novo." EOG Resources, Inc. v. State, 2003 WY 34, ¶7, 64 P.3d 757, ¶7 (Wyo. 2003).

DISCUSSION

[¶6] Pinnacle Bank initially argues that pursuant to Distad v. Cubin, 633 P.2d 167 (Wyo. 1981), this court must apply Wyoming's established common law regarding natural accumulation of snow and ice and disregard the standard set forth in the ordinance. In explaining the state of the common law, we have stated:

In Wyoming, the owner or occupier of premises is not liable for injuries resulting from a slip and fall on a natural accumulation of snow and ice. Eiselein v. K-Mart, Inc., 868 P.2d 893, 897 (Wyo. 1994). Further, we have held that there is no liability when the dangers surrounding such natural accumulation are obvious or are as well known to the plaintiff as the defendant. Sherman v. Platte County, 642 P.2d 787, 789 (Wyo. 1982). Liability attaches only if the owner or occupier creates an unnatural accumulation that is substantially different in volume or course than would naturally occur. Eiselein, 868 P.2d at 898. To prove that an accumulation of snow and ice is unnatural, a plaintiff must show that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Myers v. Forest City Ent., Inc., 92 Ohio App.3d 351, 635 N.E.2d 1268, 1269 (1993).

Pullman v. Outzen, 924 P.2d 416, 418 (Wyo. 1996). We have also stated:

Liability will only attach if the owner or occupier creates an unnatural accumulation that is substantially different in volume or course than would naturally occur. Pullman, 924 P.2d at 418; Eiselein, 868 P.2d at 898. To establish that an accumulation of snow and ice is unnatural, a plaintiff must show that the defendant created or aggravated the hazard, that the defendant knew or should have known of the hazard, and that the hazardous condition was substantially more dangerous than it would have been in its natural state. Pullman, at 418. Furthermore, no duty exists which requires either the removal of an obvious danger or a warning of its existence. Eiselein, at 895. In Sherman v. Platte County, [642 P.2d 787 (Wyo. 1982),] we stated

there is the rule that no duty exists which requires either the removal of an obvious danger or a warning of its existence. Second is the rule that no duty exists to remove the natural accumulation of snow and ice. The latter rule broadens the protection accorded possessors of land under the former rule. It covers that class of cases where the ice and snow naturally accumulate in a fashion where there is a lurking danger, i.e., the ice is covered by the snow.

642 P.2d at 789. We have also stated that even the most ably constructed and carefully maintained parking lot will probably contain minor indentations in which naturally occurring water can accumulate and freeze; naturally occurring water which naturally concentrates in such a lot is still considered a natural accumulation. Eiselein, 868 P.2d at 898.

Paulson v. Andicoechea, 926 P.2d 955, 957-58 (Wyo. 1996).

[¶7] Nevertheless, in as early as 1963, this court suggested that the existence of an ordinance requiring a different standard of care for the removal of snow and ice might override Wyoming's natural accumulation of snow and ice common law. Watts v. Holmes, 386 P.2d 718 (Wyo. 1963). One year later, this court again implied in Kalman v. Western Union Telegraph Co., 390 P.2d 724, 727 (Wyo. 1964), that a city ordinance calling for the maintenance of every city sidewalk so as to be clean and free from snow, ice, and slush established a duty that the owner use reasonable care to keep a sidewalk free from snow and ice. Thus, this court again indicated that an applicable city ordinance might increase the responsibility of a property owner above and beyond that established by the common law. Still later in Johnson v. Hawkins, 622 P.2d 941, 943 (Wyo. 1981), upon reviewing the history of Wyoming's slip-and-fall-on-ice-and-snow cases, this court announced:

In our judgment, the most accurate interpretation of the Wyoming cases discussed above involving slips on icy sidewalks is that a storekeeper, in the absence of an ordinance, is not under a

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