Selger v. Steven Brothers, Inc.

• Decision Date: 22 August 1990
• Docket Number: No. B043069,B043069
• Citation: 272 Cal.Rptr. 544,222 Cal.App.3d 1585
• Court: California Court of Appeals Court of Appeals
• Parties: Miriam SELGER, Plaintiff and Respondent, v. STEVEN BROTHERS, INC., Defendant and Appellant. Civ.

Page 544

272 Cal.Rptr. 544

222 Cal.App.3d 1585

Miriam SELGER, Plaintiff and Respondent, v. STEVEN BROTHERS, INC., Defendant and Appellant.

Civ. No. B043069.

Court of Appeal, Second District, Division 5, California.

Aug. 22, 1990.

Lord, Bissell & Brook, Rudolf H. Schroeter, Henry J. Weinblatt and David Hayek, Marer, Marer & Schuck, Gerald Z. Marer, Alan G. Marer and John F. Schuck, for defendant and appellant.

Booth & Koskoff and Shaffer, Doble, Carlson, Hicks and Pocrass and Leonard Sacks, for plaintiff and respondent.

ASHBY, Associate Justice.

In this slip and fall case, defendant and appellant Steven Brothers, Inc., doing business as Steven's Nursery and Hardware, appeals from a judgment on a jury verdict in favor of plaintiff and respondent Miriam Selger. Plaintiff slipped and fell on a piece of dog excrement on the city sidewalk in front of defendant's place of business in the City of Los Angeles. This dog dropping was not on defendant's property, the dog was not defendant's, and defendant had no part in causing the dog feces to be deposited on the city's sidewalk. The sole basis for the jury's finding of negligence was that defendant's failure to clean up the dog defecation violated city ordinances requiring abutting landowners to keep the city sidewalk clean and clear of waste or refuse, and such violation constituted negligence per se.

We reverse. The trial court erred in instructing on negligence per se, because the ordinances did not, in the circumstances of this case, create a duty of care owing from defendant to plaintiff; defendant's duty was owed only to the city.

FACTS

Defendant operates a nursery and hardware business on Riverside Drive within the city limits of Los Angeles. The sidewalk in front of defendant's store, from the fence on defendant's property line to the curb, is 13 feet wide and is owned by the City of Los Angeles. Defendant's employees customarily hosed or swept the sidewalk at closing time or opening time. It was common to find dog feces on the sidewalk in the morning. On the date of plaintiff's accident, defendant's department manager observed dog feces on the sidewalk when he opened for business at 9 a.m. Because several customers entered the store immediately, the manager was delayed in telling a subordinate employee to clean up the fecal matter. Just as the manager was instructing his employee, he heard plaintiff scream. Although defendant's manager estimated the accident occurred five to seven minutes after opening the store, plaintiff's evidence showed the time was around 9:30.

Defendant customarily displayed flowers and shrubs on a portion of the sidewalk immediately in front of its fence. ¹ A display was out when plaintiff walked by on the sidewalk, and plaintiff was looking toward it. Plaintiff's right leg flew out from under her and she fell. Her shoe, her clothing, and a skid mark on the sidewalk left no doubt she slipped on the dog dropping. Plaintiff, who was 70 years old and had a previous hip implant, was badly injured and required extensive additional hip implant surgery.

Los Angeles Municipal Code section 41.46 provides: "No person shall fail, refuse or neglect to keep the sidewalk in front of his house, place of business or premises in a clean and wholesome condition."

Los Angeles Municipal Code section 56.08, subdivision (c) provides: "No person having charge or control of any lot or premises shall allow any soil, rubbish, trash, garden refuse, tree trimmings, ashes, tin cans or other waste or refuse to remain upon any sidewalk, parkway, or in or upon any street abutting on or adjacent to such lot or premises, or which will interfere with or obstruct the free passage of pedestrians or vehicles along any such street, sidewalk or parkway."

The trial court ruled that although there was no other basis for negligence, defendant's violation of either or both ordinances would constitute negligence per se. The court instructed the jury under BAJI No. 3.45 (1988 Rev.) that if defendant violated the ordinances such violation was negligence, unless defendant proved by a preponderance of evidence that defendant did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances, who desired to comply with the law. The jury found against defendant on these issues by special verdict. The jury found total damages of $473,000, and rendered verdict for plaintiff for $402,050 based on 15 percent comparative negligence of plaintiff.

DISCUSSION

Effect of Ordinances

Defendant did no affirmative act to create the hazard of dog feces on the city sidewalk. This was not defendant's rubbish, nor was it soil or plant material from the conduct of defendant's business. The judgment nevertheless imposes liability on the ground that city ordinances required defendant, as the abutting landowner, to clean the city sidewalk. Applying well-established authority, we hold the ordinances imposed a duty on defendant which was owed only to the city. The ordinances did not create a standard of care owed to the traveling public; therefore the trial court erred in instructing the jury that violation of the ordinances constituted negligence per se.

Under common law the owner or occupant of land abutting a public sidewalk had no duty to keep the sidewalk in a safe condition and was not liable to travelers injured as a result of defects in the sidewalk which were not created by the owner or occupant. Moreover, because the municipality has the primary responsibility for maintaining the public sidewalks, statutes and ordinances which require the abutting landowner to maintain the sidewalk in a condition that will not endanger pedestrians have almost uniformly been interpreted not to create a standard of care toward pedestrians but only a liability of the owner to the municipality. (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326-332, 146 P.2d 929; Williams v. Foster (1989) 216 Cal.App.3d 510, 515-522, 265 Cal.Rptr. 15; Sts. & Hy.Code, § 5610; Annot. (1963) 88 A.L.R.2d 331, 354.)

Restatement 2d Torts, section 288 provides, "The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively [p] ... (c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public...." Illustration 5 of the Comment on Clause (c), states, "A municipal ordinance provides that abutting property owners must repair defects in sidewalks and remove snow and ice from them, and that if they fail to do so they shall be liable to the city for the cost of the repairs or removal. The ordinance is construed to have no other purpose than to impose responsibility to the city. A, an abutting owner, fails to remove ice from the sidewalk. B slips on the ice and is injured. The ordinance does not provide a standard of conduct for the benefit of B."

The Restatement rule is consistent with California Evidence Code section 669 on which plaintiff relies. Subdivision (a) of section 669 provides: "The failure of a person to exercise due care is presumed if: [p] (1) He violated a statute, ordinance, or regulation of a public entity; [p] (2) The violation proximately caused death or injury to person or property; [p] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [p] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." The presumption of negligence does not arise unless, under clause (4), the person suffering injury was one of the class of persons for whose protection the ordinance was adopted. (Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 182-183, 101 Cal.Rptr. 908; Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 350, 354, 224 Cal.Rptr. 326.)

An ordinance requiring the abutting landowner to maintain the sidewalk would be construed to create a duty of care to third persons only if the ordinance clearly and unambiguously so provided. (Schaefer v. Lenahan, supra, 63 Cal.App.2d at p. 332, 146 P.2d 929; Williams v. Foster, supra, 216 Cal.App.3d at [222 Cal.App.3d 1591] pp. 521-522 and fn. 9, 265 Cal.Rptr. 15.) The ordinances in this case do not clearly so provide. Under Los Angeles Municipal Code section 11.00, subdivision (m), violations of the code are punishable as a misdemeanor or an infraction, and conditions which constitute a public nuisance may be summarily abated as such by the city. In addition, California Streets and Highways Code sections 5600 through 5630 provide a procedure for giving notice to abutting landowners requiring the owner to repair the sidewalk or be liable for the cost of repairs made by the city. The provisions of the Streets and Highways Code were construed in Schaefer v. Lenahan, supra, and Williams v. Foster, supra, to create a duty only to the city, not to the traveling public. Thus, although the ordinances here imposed a duty on defendant to keep the sidewalk in clean and wholesome condition, that duty was owed to the city, enforceable through criminal punishment, nuisance abatement or the assessment procedures under the Streets and Highways Code. The ordinances did not expressly or unambiguously create a standard of care for liability in civil damages to pedestrians injured by a condition of the sidewalk not caused by defendant.

Plaintiff contends that the ordinances here should be construed to impose a duty of care because they involve "transitory" slippery substances on the sidewalk rather than structural defects in the sidewalk. There is no merit to this contention. At common law an abutting owner had no duty to the public to clean up a slippery condition on the sidewalk caused by unrelated third parties. (Bolles v. Hilton & Paley, Inc. (1931) 119...