Rudd v. Lyceum Dramatic Productions

• Decision Date: 02 August 1957
• Docket Number: No. 36967,36967
• Citation: 85 N.W.2d 61,250 Minn. 328
• Parties: Ruth RUDD and Oscar Rudd, Respondents, v. LYCEUM DRAMATIC PRODUCTIONS, Inc., Alfred Meyers, Myrtle Schreiber, BarneySmith, Harold Smiley and Ben B. Fenton, Appellants, City of Minneapolis, Defendant.
• Court: Minnesota Supreme Court

Page 61

85 N.W.2d 61

250 Minn. 328

Ruth RUDD and Oscar Rudd, Respondents, v. LYCEUM DRAMATIC PRODUCTIONS, Inc., Alfred Meyers, Myrtle Schreiber, BarneySmith, Harold Smiley and Ben B Fenton, Appellants City of Minneapolis, Defendant.

No. 36967.

Supreme Court of Minnesota.

Aug. 2, 1957.

Syllabus by the Court

1. An owner or occupant of property owes not duty to pedestrians to keep the sidewalk in front of his property safe from the hazards of ice and snow which have naturally accumulated thereon, even though dangerous ridges are formed as a result of normal vehicular or pedestrian traffic. Where the accumulation of ice and snow is due to artificial causes, the abutting landowner may be held liable for injuries resulting therefrom. If the accumulation is the result of a combination of natural and artificial causes, as in the instant case, the abutting landowner may be held liable only if it is shown that the artificial accumulation aggravated the hazard already existing by reason of natural forces.

2--3. The jury in the instant case could properly conclude from the evidence that the defendants negligently caused some water of an undetermined amount to accumulate and freeze, with other natural accumulations, on certain areas of the sidewalk in front of its property. However, there was no evidence, inferential or otherwise, of any substantial nature tending to show that the artificial accumulation caused by the defendants' negligence aggravated or made more dangerous the existing hazard occasioned by natural causes. Held, the verdicts of the jury were necessarily based upon conjecture and speculation and not upon any substantial evidence.

Richards Janes Hoke Montgomery & Cobb and Greer E. Lockhart, Minneapolis, for appellants.

William H. DeParcq, Chester D. Johnson, Robert N. Stone, and S. Harry Gainsley, Minneapolis, for respondents.

DELL, Chief Justice.

This is an action by the plaintiff Ruth Rudd to recover damages for personal injuries suffered by her as a result of a fall on an icy public sidewalk in front of defendants' property. ¹ The action was consolidated for trial and on this appeal with that of her husband, Oscar Rudd, who seeks to recover the medical expenses he incurred as a result of his wife's injuries. The jury found for the plaintiffs in both cases and the defendants appeal from orders denying their alternative motions for judgments notwithstanding the verdicts or a new trial.

The complaints allege that the defendants were negligent in allowing water to spill and drain out onto the sidewalk and in allowing water to collect and freeze there. Defendants deny negligence generally and further plead assumption of risk and contributory negligence on the part of Ruth Rudd, hereinafter referred to as the plaintiff. However, the defenses of assumption of risk and contributory negligence were abandoned by the defendants at the time of the oral argument on this appeal and hence need not be considered.

The property involved, the Lyceum Theatre building, is located on the south side of Eleventh Street, between Marquette and Nicollet Avenues. Eleventh Street runs in a general easterly-westerly direction. The theatre is an old building approximately 120 feet wide and four stories high. There is a portico at the front of the building with six pillar -like structures extending somewhat out from its face. On the top of these pillars and in the middle of the building is a cornice, estimated from 50 to 70 feet wide. ² It is 30 feet from the sidewalk at floor level with the third floor. This cornice projects about three or three and one-half feet out from the building and is one foot deep. Another cornice of the same width is located about 10 feet higher than the first, at approximately fourth-floor level. It projects 12 or 15 inches out from the building and is not as deep as the first cornice. A ledge also extends across the entire front of the building at roof level. In the center of the building and below the lowest cornice is a modern-type marquee canopy.

Two downspouts are located on the front of the building just outside the most easterly and most westerly pillars about 20 feet from either end of the building. They connect the uppermost projection of the portico with the lower cornice and, in turn, lead from the lower cornice to the sidewalk in front of the building. At the time of the accident they were corroded and stopped up with debris. Portions of the spouts had completely rusted through. Although the testimony is somewhat confusing, it appears that there is a grate in the sidewalk at the base of the westerly downspout which would catch any water that did flow down that spout. A third downspout, located just off center of the building, leads from the marquee canopy to the sidewalk. It was in good working order. The sidewalk in front of the building is approximately 10 feet wide.

During the month of February 1953 there had been considerable snowfall and on each of the two days preceding the accident there had been thawing conditions. At the time of the accident, the morning of February 25, 1953, it was freezing and the streets and sidewalks were generally icy and slippery. The plaintiff took a bus to the downtown area and got off at the intersection of Nicollet Avenue and Eleventh Street. She proceeded to walk in an easterly direction on the south side of Eleventh Street from Nicollet Avenue toward Marquette Avenue. A drugstore is located on the corner of Eleventh and Nicollet, which is separated from the Lyceum by an open space about 14 feet wide. The plaintiff testified that it was 'slippery' in front of the drugstore but that it was 'bumpy' and 'rough' in front of the Lyceum. She walked past the portico and was almost to the most easterly door of the building when she turned her ankle on a piece of rough ice, slipped, and fell. While there is some dispute as to precisely where the plaintiff fell, it appears that it was just a few feet past the most easterly pillar and downspout adjacent thereto.

1. The only question before this court is whether there is any substantial evidence to sustain the verdicts. ³ Plaintiffs contend that the defendants negligently permitted moisture to run down the drain pipes and drip over the cornices of the building onto the sidewalk. This water, they claim, together with the snow and other water on the sidewalk, froze and created a hazardous condition causing plaintiff's fall.

As a general rule an abutting owner or occupant of property owes no duty to pedestrians to keep the sidewalk safe from the hazards of ice and snow which have Naturally accumulated thereon, ⁴ in the absence of a statute imposing such duty. ⁵ This is true even though dangerous ridges are formed as a result of normal vehicular or pedestrian traffic. ⁶ Where however, the accumulation of ice and snow is due to Artificial causes, the abutting landowner may be liable for injuries resulting therefrom. ⁷ As we said in Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 60, 71 N.W.2d 904, 908:

'* * * If * * * an abutting owner maintains or uses his property in a manner whereby dangerous ice is caused to form on the adjacent sidewalk as a result of artificial, as distinguished from natural, causes, he is liable for injuries proximately caused to a pedestrian who slips and falls on such ice.'

A more difficult problem arises where the dangerous condition is created by a combination of natural and artificial causes as plaintiffs claim occurred in the instant case. Certainly if a defendant's acts had little or no effect on the hazard already existing by reason of natural accumulations of ice and snow, it cannot be said that his conduct proximately caused the injury. ⁸ On the other hand, if the defendant increases the hazard that otherwise normally exists during winter months by introducing a 'new element of danger,' he may be held liable. ⁹ For example, in Johnson v. Elmborg, 165 Minn. 67, 70, 205 N.W. 628, 629, we affirmed a verdict for the plaintiff where the evidence showed that water from a defective drain pipe had formed ice on the sidewalk and that the sidewalk 'was worst at the drain pipe.' The burden is on the plaintiff to show this causal relationship. ¹⁰

Applying the foregoing principles to the instant case, it follows that liability can be imposed only if it is shown that (a) the defendants negligently caused water to accumulate and freeze on the sidewalk; and (b) the artificial accumulation was an efficient cause of the dangerous condition which occasioned the injury. Both of these are questions of fact to be resolved by the trier of fact. ¹¹ If its determinations are sufficiently supported by the evidence, viewed in a light most favorable to the verdicts, and the inferences reasonably deducible therefrom, they cannot be disturbed on appeal. ¹²

2. The primary evidence regarding the discharge of water from the Lyceum building onto the sidewalk is the testimony of the plaintiff. According to her, during previous thawing periods, ¹³ water had 'dripped' on the sidewalk from the lower cornice although it is not clear whether the water dripped merely from the easterly corner of the cornice or along its entire length. She supposed that the upper cornice also dripped but 'was aware of the fact that this one (lower cornice) dripped.' The plaintiff could offer no evidence of dripping from the ledge going across the entire building at roof level because 'I don't think I looked that far up.' Nor is there anything in her testimony to indicate the extent of the 'dripping' she had observed.

Her testimony is also somewhat meager regarding the discharge of water from the downspouts. While she had not seen water coming out of the spouts, '(t) here was water coming down around the (easterly) spout' which collected in the holes on the sidewalk.

The custodian of the Lyceum building testified, on behalf of the defendants, that during the 26 years he had been working for the theater he had never...