Spechtenhauser v. City of Dubuque

• Decision Date: 23 July 1986
• Docket Number: No. 85-273,85-273
• Citation: 391 N.W.2d 213
• Parties: Sally L. SPECHTENHAUSER and John G. Spechtenhauser, Appellees, v. CITY OF DUBUQUE, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 213

391 N.W.2d 213

Sally L. SPECHTENHAUSER and John G. Spechtenhauser, Appellees, v. CITY OF DUBUQUE, Iowa, Appellant.

No. 85-273.

Supreme Court of Iowa.

July 23, 1986.

Barry A. Lindahl, Dubuque, for appellant.

Stephen W. Scott, of Kintzinger, Kintzinger, Van Etten, Setter & Scott, Dubuque, for appellees.

Considered en banc.

CARTER, Justice.

The defendant, City of Dubuque, appeals from the judgment entered on a jury verdict for the plaintiff in a sidewalk fall down case. It urges that reversible error was committed in the trial court's instructions to the jury with respect to the duty of a municipality to inspect sidewalks. The trial court's judgment was affirmed by an equally divided court of appeals, and we granted further review. We find no error in the trial court's denial of the city's exceptions to the jury instructions and therefore affirm the judgment.

Plaintiff, Sally Spechtenhauser, tripped and fell while walking on a sidewalk in the city of Dubuque on June 15, 1983. Evidence produced at trial would permit a finding that the cause of her tripping was an irregular slab of sidewalk sunken one to one and one-quarter inches below the level of the adjoining slab. Sally Spechtenhauser sought recovery in this action for personal injuries sustained in this fall. Her husband, plaintiff John Spechtenhauser, joined in the action, seeking recovery for loss of consortium. Plaintiffs allege that the city was negligent in (a) failing to care for, supervise, inspect and control the public sidewalk; (b) failing to maintain the public sidewalk in a safe condition; and (c) failing to repair the defective sidewalk at the place where Sally fell.

The city engineer testified at trial that the city did not undertake to regularly inspect any sidewalks other than those which were newly constructed or newly reconstructed. The sidewalk in question had not been inspected since its construction in 1973. It was the further testimony of the city engineer that the city gathered information concerning the condition of its sidewalks in three ways: from citizen complaints, from accident reports, and from chance observations made by city personnel while using the sidewalks.

The trial court, in Instruction No. 16, advised the jury that:

Plaintiff Sally L. Spechtenhauser asserts that the Defendant was negligent in the following particulars:

(1) In failing to inspect the sidewalk near the business known as Grandview Drug, at 486 North Grandview in Dubuque, Iowa;

(2) In failing to maintain the sidewalk in a safe condition (3) In failing to repair the sidewalk to a safe condition.

These particulars or specifications of negligence have been explained to you in other instructions.

To entitle the plaintiff Sally L. Spechtenhauser to recover, the burden is upon her to establish by a preponderance of the evidence all of the following propositions:

(a) That the Defendant was negligent in some particular, as charged by the Plaintiff;

(b) That such negligence was a proximate case of her injury or damage;

(c) That the Plaintiff has sustained damage and the extent thereof.

If Plaintiff Sally L. Spechtenhauser has established all of the foregoing propositions by a preponderance of the evidence, then she is entitled to recover in some amount, and you will then consider the Defendant's assertion of Plaintiff's negligence, in accordance with other instructions herein.

If Plaintiff Sally L. Spechtenhauser has failed to establish by a preponderance of the evidence any one or more of the foregoing propositions, then she cannot recover, and you will then answer the issues in a special verdict, submitted with these instructions accordingly.

Further amplification with respect to a municipality's duty to inspect sidewalks was contained in Instruction No. 15 which was given to the jury in the following form:

The law of Iowa provides that a city is responsible for the care, supervision and control of public grounds, streets and sidewalks; and shall keep all public ways, squares and commons in repair.

The City of Dubuque is responsible for the inspection, repair and maintenance of its sidewalks, including the area where plaintiff claims to have fallen. This imposes upon the city the duty to exercise reasonable and ordinary care to keep its sidewalks in a reasonably safe condition for the use of pedestrians, free from such defects as it should anticipate are likely to result in injury to pedestrians.

In determining whether a condition of the sidewalk has such a defect, the character and location of the condition as well as the use made of the sidewalk at that location, should be considered.

This duty does not make the city the insurer of safety against all accidents that occur on its public sidewalks. The city is responsible when it fails to use ordinary care, as stated above. It must have actual notice of the defect or the defective condition must have existed for a sufficient time to enable the city to discover and repair the defect in the exercise of reasonable and ordinary care.

Regarding the city's duty to inspect, you are instructed that it is the duty of a municipality to exercise reasonable care to know whether the areas it is responsible for are in a safe condition. No ironclad rule can be laid down with respect to when the municipality has satisfied its duty under this requirement.

The city took timely exception to this instruction at trial. This exception was stated as follows: "The clear implication [of Instruction No. 15] is that the city has some affirmative duty to make inspections on some--with some degree of regularity, and I don't think that is the law, and I don't think we are required--I don't think we have a specific duty to inspect."

In seeking reversal of the judgment against it, the city urges that "inadequate inspection or failure to discover a defect is not a separate ground of liability but only bears on proof of constructive notice." From this premise, it urges that the language of Instruction No. 15, suggesting that the city has an affirmative duty of inspection, and the provisions of Instruction No. 16, permitting the jury to base a finding of negligence on a failure to inspect, renders these instructions fatally defective. The crux of the city's argument appears to be that, while it may be held liable if injuries do occur as a result of defects in its sidewalks, it has no affirmative obligation to prevent such injuries from happening. We cannot accept this contention in view of the fact that sidewalks are a portion of the city street reserved for pedestrian traffic for which the city bears a responsibility of care, supervision, and control.

At the time of the incident involved in the present action, the applicable statute governing a city's responsibility for sidewalks was Iowa Code section 364.12(2) (1983), which provided:

A city is responsible for the care, supervision, and control of public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, except those lawfully required to be maintained by a railway company, and the city shall keep all public ways, squares, and commons open, in repair, and free from nuisance....

The language of this statute had been essentially unchanged since the adoption of section 1097 of the Iowa Code Revision of 1860. See, e.g., Iowa Code § 527 (1873); Iowa Code § 5945 (1939); Iowa Code § 389.12 (1966). [The statute has been amended since the occurrence from which this case arose, but that amendment has no bearing on this case. See 1984 Iowa Acts ch. 1002, § 1 (codified at Iowa Code § 364.12(2) (1985) ].

We believe that the provisions of this statute which mandate supervision of municipal sidewalks necessarily imply that there will be some continuing oversight by the municipality with respect to the condition of these public walkways. Several of our prior decisions support the view that municipal corporations bear an active obligation with respect to sidewalk inspection. See, e.g., Armstrong v. City of Des Moines, 232 Iowa 711, 718, 6 N.W.2d 287, 291 (1942); Krska v. Incorporated Town of Pocahontas, 200 Iowa 594, 597, 203 N.W. 39, 41 (1925); Platts v. City of Ottumwa, 148 Iowa 636, 639, 127 N.W. 990, 990-91 (1910). In Platts, we stated:

It certainly is not true that the city is charged with no greater duty or obligation to observe the condition of its walks, or to know of the existence of dangerous defects therein, than the ordinary citizen or traveler who has...