Smith v. District of Columbia

• Decision Date: 10 May 1951
• Docket Number: No. 10672.,10672.
• Citation: 89 US App. DC 7,189 F.2d 671
• Parties: SMITH v. DISTRICT OF COLUMBIA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

89 US App. DC 7, 189 F.2d 671 (1951)

SMITH v. DISTRICT OF COLUMBIA.

No. 10672.

United States Court of Appeals District of Columbia Circuit.

Argued January 30, 1951.

Decided May 10, 1951.

Paul L. Sweeny, Washington, D. C., with whom Thomas A. Farrell, Washington, D. C., was on the brief, for appellant.

Chester H. Gray, Principal Asst. Corp. Counsel for the District of Columbia, Washington, D. C., with whom Vernon E. West, Corp. Counsel, and Oliver Gasch, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee. John F. Doyle, Asst. Corp. Counsel, Washington, D. C., also entered an appearance for appellee.

Before CLARK, PRETTYMAN and WASHINGTON, Circuit Judges.

PRETTYMAN, Circuit Judge.

This is a civil action brought in the District Court against the District of Columbia, as a municipal corporation, to recover damages for personal injuries sustained as a result of slipping on ice and snow on a public street. At the conclusion of the evidence for the plaintiff the court directed a verdict for the defendant municipality. This appeal followed.

Plaintiff slipped and fell at 14th and K Streets, Northwest, in Washington, as she stepped from a crosswalk to a sidewalk on her way to work on the morning of February 4, 1948. There had been a heavy snowfall some ten days before the accident, and the intervening weather had been cold. The operator of the building abutting the corner had cleared the snow from about half the width of the sidewalk. Snow, ice and slush were on the crosswalk. There had been an additional snowfall the morning of the accident, the fresh snow being an inch or two deep. There were no structural defects in the street or pavement at the place of the accident.

Plaintiff invokes the provisions of the so-called "snow law", the pertinent sections of which appear as Sections 801, 802, 804 and 805 of Title 7 of the District of Columbia Code (1940). Section 801 makes it the duty of every person in control of any building fronting on a paved sidewalk to remove, within the first eight hours of daylight "after the ceasing to fall" of snow or sleet, such snow or sleet from so much of the sidewalk as is in front of or abuts the building. Section 802 imposes a similar duty upon the Commissioners with respect to crosswalks, and adds that in the event of inability to move the accumulation by reason of the hardening thereof the Commissioners shall make the crosswalks reasonably safe for travel by sprinkling sand or ashes thereon. Section 804 imposes upon the person in charge of a building the duty to make the sidewalk reasonably safe for travel by sprinkling sand or ashes thereon, if snow or ice cannot be removed because of the hardening thereof. Section 805 provides that, in the event of the failure of any person to remove snow or ice from the sidewalks or to make them reasonably safe for travel, it shall be the duty of the Commissioners, as soon as practicable after the expiration of the time otherwise provided for the removal, etc., to cause the snow in front of a building to be removed or to cause the sidewalk to be made reasonably safe, and to certify the expense of such work to the Corporation Counsel, who, by Section 806, is directed to sue for recovery of such expense.

Plaintiff contended below and contends here that the foregoing statute imposes upon the Commissioners a liability for injury resulting from the presence of snow or ice on a sidewalk or crosswalk a reasonable time after it has formed there, unless the Commissioners have caused it to be sprinkled with sand or ashes.

Generally speaking, of course, private action for damages will not lie for failure to perform a governmental duty, but it is established in this jurisdiction that the District of Columbia Government is liable for injuries resulting from negligent disregard of defects in streets. The snow statute does not mention liability for injuries caused by failure to perform the duty imposed by it, and so the question here is whether the imposition of the duty to remove, or to sand, snow and ice changed to an absolute liability a liability which had theretofore existed as conditional, premised upon negligence. We held in Radinsky v. Ellis¹ that the snow removal statute does not impose a liability on a property owner to respond in damages to a pedestrian who is injured by falling on snow which the owner has not removed from the sidewalk. That decision rested upon the premise that the primary obligation to keep the streets safe for walking rests upon the municipality, and the conclusion of the court was that the snow removal statute did not shift to the property owner any part of that duty. Implicit in the decision, however, is the holding that the statutory provision requiring a property owner to remove snow from the abutting sidewalk did not impose a liability different from or in addition to the liabilities theretofore existing for damages to persons injured. We think that same doctrine applies to the District Government. The snow removal law did not change or add to the basic liability of the District Government in respect to safe conditions on the public streets.

There is an additional feature of the case which should be noted in this respect. There was testimony that plaintiff slipped and fell as she stepped onto the sidewalk, and the evidence was, as we have indicated, that the owner of the building abutting the sidewalk at the corner had cleared the snow and ice from the sidewalk for about half its width. This court, in Hecht Co. v. Hohensee,² pointed out that any duty which a property owner may have to remove snow and ice from the abutting sidewalk is fully served by the clearing of a reasonable portion of the sidewalk, where the fall of snow is such as to make it impracticable to clear the entire sidewalk. We there pointed out that something has to be done with the snow removed and that it cannot be thrown into the street; that it must, therefore, be piled on a portion of the sidewalk. Thus it appears that in the case before us the snow removal law had been complied with, so far as the sidewalk was concerned. If it was complied with by the property owner, there was no liability over (at least under the snow law) upon the municipality.

We turn then to examine the liability of the District under general rules of law. Thus viewed this is not a case of first impression in this jurisdiction. In 1884 the Supreme Court of the District of Columbia, which was then the highest court in the District, stated the rule in Clark v. District of Columbia.³ There had been alternate snowing, freezing and thawing for several days prior to the accident in that case. An elderly lady slipped and broke her hip on an accumulation of snow and ice on the "footway and crossing" at a downtown street corner. There was no actual notice to the municipal authorities of danger at that place. Neither was there evidence that the condition at the place of the accident was more perilous than at any other place in the City. The court held that the municipality is not liable "when it has had no more notice than that which arises from the well-known result to the streets everywhere of a severe and protracted snow storm."⁴

Many years having passed and much having been written on the subject since the Clark case was decided, we think it appropriate to review the question of law involved. Opinion in the state courts is divided upon the question whether, absent a statute, any liability lies against a municipality for defects in its streets. In many states no such liability exists, the view being that street maintenance is a governmental duty for non-performance of which no private action for damages will lie.⁵ It is settled, however, in this jurisdiction, as we have said, that the District Government is liable for such defects.⁶ But the municipality is not an insurer of safety. Its liability sounds in negligence; not necessarily active negligence, of course, but negligence imputed from a failure to perform a duty.⁷ The usual rules as to the exercise of ordinary care and prudence by the plaintiff, contributory negligence, and proximate cause all apply to such cases.

The general rule, where liability for defects is held to exist, is that the city must exercise reasonable care to keep the streets in a reasonably safe condition.⁸ And that is the rule in the District of Columbia.⁹

Snow and ice present a peculiar problem, in that they may be dangerous in their natural, normal state and over many, or even all, parts of the entire city. A municipality cannot be held liable for that which is not its fault. So it cannot be held liable for injuries due to snow or ice as or just after the snow has fallen or the ice formed and when the city has had no opportunity to correct dangerous conditions thus created. And it cannot be liable for that which is beyond its power to correct. So, absent a defect in the street itself, it cannot be held liable for injuries due to the mere slipperiness of snow or ice in its natural state, because it cannot cure such slipperiness on every bit of sidewalk and street in a large city. That was pointed out in the Clark case, supra.

But, where snow or ice has remained on the streets or sidewalks for a period of time and in certain places has been pushed or trampled or otherwise formed into an obstruction or a danger, apart from its original natural dangerous state and in an unusual shape or size, it is not different from any other obstruction or danger. If the municipality has actual notice of the danger, or if the danger is so notorious or so long-continued that the municipal authorities are charged with constructive notice of it, the municipality is liable for injuries resulting from it. In the Clark case, supra, the court said, with reference to snow and ice, "* * * the District is to be held to liability when, on notice of the dangerous condition of any particular place, it neglects to remedy it."¹⁰

Of course, if a dangerous...