Reichman v. Franklin Simon Corp.

• Decision Date: 21 September 1978
• Docket Number: No. 11806.,11806.
• Citation: 392 A.2d 9
• Parties: Helene REICHMAN et al., Appellants, v. FRANKLIN SIMON CORPORATION, Appellee.
• Court: D.C. Court of Appeals

392 A.2d 9

Helene REICHMAN et al., Appellants, v. FRANKLIN SIMON CORPORATION, Appellee.

No. 11806.

District of Columbia Court of Appeals.

Argued May 9, 1978.

Decided September 21, 1978.

David E. Schreiber, Washington, D. C., for appellants.

Thomas Pace, Washington, D. C., for appellee.

Before KERN, YEAGLEY and HARRIS, Associate Judges.

YEAGLEY, Associate Judge:

This is an appeal from an order granting summary judgment to appellee. Appellants are Helene Reichman and her husband, Walter. Involved is a suit for damages which arose when, on the morning of January 5, 1971, Helene Reichman slipped and fell on the icy, public sidewalk in front of appellee's store. Helene Reichman sustained a fracture of her right hip, which occasioned a series of operations and ultimately required a total hip replacement.

The procedural history of this case may be summarized as follows. The Reichmans originally filed suit in United States District Court against appellee and its codefendant the District of Columbia, on November 27, 1972. On June 29, 1973, United States District Court Judge John Pratt granted summary judgment to appellee with respect to appellants' claim, and noting that neither federal jurisdiction nor more than $50,000 was involved, certified the matter to Superior Court, pursuant to D.C.Code 1973, § 11-922(b).¹

On July 30, 1974, the Superior Court, per Judge Braman, issued an order granting appellee summary judgment on a cross-claim brought by the District of Columbia, but refused to enter final judgment on either this order or the District Court order of June 29, 1973, because appellants' action against the District of Columbia remained pending.²

On November 3, 1976, appellants and the District of Columbia reached a settlement. A praecipe was filed dismissing the case with prejudice against the District of Columbia. This finalized the case with respect to the summary judgment orders entered previously, and matured appellants' right to appeal. On December 3, 1976, timely appeal was noted, but from the wrong order, i. e., the July 30, 1974 order of Judge Braman. On December 13, 1976, an amended notice of appeal was filed, correctly, from the District Court order of June 29, 1973 granting appellee summary judgment against appellants.³

On October 11, 1977, this court ordered appellants to show cause why this appeal should not be dismissed for lack of jurisdiction. On December 7, 1977, we ordered that this jurisdictional matter be referred to the motions division, and on March 29, 1978, subsequent to the filing of briefs, we amended the December 7 order to refer the jurisdictional question to the merits division. We conclude that we have jurisdiction to consider this appeal, and we affirm the summary judgment order entered in appellee's favor.

I.

The jurisdictional question, one of first impression, is whether, in a case in which the District Court has entered an interlocutory order, subsequent transfer of the case under D.C.Code 1973, § 11-922(b) empowers the Superior Court to treat the order as its own, and empowers this court to review the order on appeal. Stated another way, was enactment of § 11-922(b) indicative of Congress' intention that when a case is transferred under that section, all previous acts of the District Court shall be regarded in effect as having been acts of the Superior Court? An affirmative answer is a possible interpretation; another is that § 11-922(b) contemplates transfer of the entire case at its inception only, and does not permit the Superior Court to finalize District Court interlocutory orders entered prior to transfer. The former interpretation would confer jurisdiction upon us in this case. The latter would mandate that, transfer notwithstanding, the instant summary judgment order can be finalized only by the District Court, and can be appealed only to the United States Court of Appeals for the District of Columbia Circuit. Although the language of § 11-922(b) provides no answer, and there is no legislative history bearing directly on that particular provision, the overriding Congressional concern attending enactment of court reorganization in the District of Columbia compels us to conclude that we have jurisdiction.

Underlying the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358; D.C.Code 1973, § 11-101 et seq., was Congress' wish to delineate the functions of the federal and local court systems in the District of Columbia. The federal courts were to be relieved of long-standing local responsibilities and were to become courts of limited jurisdiction, as are federal courts elsewhere.⁴ The local courts were to be given powers analogous to those of state courts, with the District of Columbia Court of Appeals constituted as the final judicial authority in the jurisdiction on matters of local law.⁵ Motivating this new arrangement was a desire to streamline jurisprudence in the District of Columbia; to eliminate the duplication of effort promoted by two separate court systems of often overlapping jurisdiction.⁶ Indeed, in the instant case, had appellants' suit against the District of Columbia gone to trial in Superior Court, and were we to hold we are without jurisdiction here, mandating that this case return to District Court, we would foster the situation which Congress manifestly sought to eliminate, i. e., suits in two court systems arising out of the same transaction.

D.C.Code 1973, § 11-921 gives the Superior Court plenary jurisdiction over civil matters brought in the District of Columbia,⁷ and correspondingly limits the civil jurisdiction of the District Court to those special matters of which District Courts nationwide may take cognizance. In the immediate aftermath of court reorganization, Congress anticipated the need to transfer to the newly empowered Superior Court certain cases which had been brought in District Court prior to the effective date of the Act,⁸ or which would be brought in District Court in the 80 months during which § 11-921(a)(6) remained inchoate. See note 7, supra. We think § 11-922(b) was drafted to respond to this transitional need. Because the statute dealt only with transfer of suits brought in District Court in the two and one-half years following the effective date of court reorganization, its impact was necessarily to be short-lived, and conceivably, this will be the only appeal to address this jurisdictional question.

Consistent with the overall scheme of court reorganization, we conclude that Congress intended that cases transferred under § 11-922(b) be treated as if they had been brought initially in Superior Court.

Our conclusion is bolstered by analogy to cases which have interpreted 28 U.S.C. § 1441 (1970), the federal removal statute. These decisions have recognized that when a case is removed from a state to a federal court "the federal court takes the case as it finds it on removal and treats everything that occurred in the state court as if it had taken place in federal court." Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963). See also Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local 70, 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974); Hill v. United States Fidelity & Guaranty Co., 428 F.2d 112 (5th Cir. 1970), cert. denied, 400 U.S. 1008, 91 S.Ct. 564, 27 L.Ed. 621 (1971); Savell v. Southern Railway Co., 93 F.2d 377 (5th Cir. 1937); 1A Moore's Federal Practice ¶ 157 [10.-2] ("a federal court may reconsider interlocutory orders made by the state court prior to removal").

Significant too is the interpretation which has been placed on the word action as used by Congress in 28 U.S.C. § 1441 (1970). Action, in the context of removal, does not refer only to a case prior to rulings and interlocutory orders, but refers to a case in any posture prior to disposition. We think it reasonable to infer that Congress intended action as used in § 11-922(b) to mean the same thing, and to permit transfer to Superior Court of this case in its interlocutory posture. The Superior Court was empowered to finalize the summary judgment order, and we have jurisdiction to review it.

II.

Appellants contend that the trial court erred in granting appellee's motion for summary judgment. They maintain that appellee was responsible for clearing the sidewalk abutting its store, and predicate liability on appellee's failure to remove the ice on which appellant Helene Reichman ultimately slipped. District of Columbia law unquestionably requires a property owner to clear abutting sidewalks.⁹ However, a real property owner is under no duty to keep the sidewalk abutting its property clear of snow and ice for the benefit of pedestrians, except as to invitees, a status which appellant Helene Reichman does not claim. Robinson v. Park Central Apartments, 248 F.Supp. 632, 634 (D.D.C. 1965). See Radinsky v. Ellis, 83 U.S.App.D.C. 172, 173, 167 F.2d 745, 746 (1948).

This rule of nonliability is based on the fact that pedestrians are not the class which the law purports to protect. The snow removal law was "an attempt on the part of the municipality to shift to the shoulders of individual citizens the burden which it is primarily incumbent on itself to bear." Radinsky v. Ellis, supra at 173, 167 F.2d at 746.¹⁰

There is one exception to this rule. It has been held that a real property owner may be found liable if it acts in any manner to increase the hazard created by snow or ice accumulated on an abutting public sidewalk and such action proximately causes plaintiff's injury. Hecht Co. v. Hohensee, 65 App.D.C. 328, 329, 83 F.2d 585, 586 (1936). Appellants assert here, as they did in their opposition to the summary judgment motion, that a genuine issue of material fact exists with respect to whether appellee acted to increase the danger that appellant Helene Reichman would fail on the ice on the sidewalk in front of appellee's store.

Appellee replies that appellants presented no...