Strandness v. Montgomery Ward

• Decision Date: 27 July 1972
• Docket Number: No. 8795,8795
• Citation: 199 N.W.2d 690
• Parties: Mrs. Harold STRANDNESS, Plaintiff and Respondent, v. MONTGOMERY WARD, a corporation, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 690

199 N.W.2d 690

Mrs. Harold STRANDNESS, Plaintiff and Respondent, v. MONTGOMERY WARD, a corporation, Defendant and Appellant.

Civ. No. 8795.

Supreme Court of North Dakota.

July 27, 1972.

Syllabus by the Court

1. Where an abutting property owner or occupant had actual notice of an icy condition on the sidewalk in front of the property resulting from water dripping between the wall and the canopy of the abutting building and failed to take timely action to remove the accumulated water and ice, the abutting property owner or occupant is liable to a pedestrian for injuries resulting from a fall by slipping on such accumulation of water and ice.

2. It was a question of fact whether the defendant was negligent in maintaining an improper or defective canopy from which water escaped upon the sidewalk and froze and in permitting the ice to remain upon the sidewalk up to the time the plaintiff was injured.

3. For reasons stated in the opinion, the judgment of the trial court is affirmed.

Hjellum, Weiss, Nerison, Jukkala & Vinje, Jamestown, for defendant and appellant.

Ottmar & Nething, Jamestown, for plaintiff and respondent.

PAULSON, Judge (on reassignment).

The defendant, Montgomery Ward, a corporation engaged in a retail business in downtown Jamestown, is appealing from a judgment of the District Court of Stutsman County awarding damages to the plaintiff, Mrs. Harold Strandness, for injuries she suffered as the result of a fall on the sidewalk in front of the Montgomery Ward store on February 16, 1970. Mrs. Strandness slipped on a patch of ice as she was leaving the Montgomery Ward store and struck her head on the building as she fell. The patch of ice, estimated as being from one to three feet in diameter, was formed by water leaking from the space between the store building and a canopy which extended out over the sidewalk. The canopy, which was installed by Montgomery Ward, was equipped with rain gutters which usually discharged drainage water elsewhere than onto the sidewalk.

Montgomery Ward urges that the district court erred in finding that Montgomery Ward was negligent, that it had notice of the ice accumulation, that Mrs. Strandness was not contributorily negligent; and in awarding excessive general damages; and also challenges the sufficiency of the evidence to support these findings.

The general rule is that an abutting property owner or occupant is not liable for natural accumulations of ice and snow upon the sidewalk in front of his property. This court, in Clark v. Stoudt, 73 N.D. 165, 12 N.W.2d 708 (1944), paragraph 4 of the syllabus, stated:

'Owners and occupants of property are not liable to a pedestrian for injuries resulting from a fall caused by slipping on snow and ice which, due to natural weather conditions, accumulated on the sidewalk in front of the property . . .'

Bentson v. Berde's Food Center, 231 Minn. 451, 44 N.W.2d 481 (1950), 39 Am.Jur.2d, Highways, Streets, and Bridges § 517, p. 918; 18 A.L.R.3d 428, § 2, 432. An exception to the general rule is that the abutting property owner or occupant who constructs or maintains upon his property a canopy in such a manner as to cause an artificial discharge and accumulation of water upon the sidewalk, which, when frozen, makes the use of the sidewalk dangerous, will be held liable to one who, being rightfully upon the sidewalk, is injured in consequence of such dangerous condition. 18 A.L.R.3d §§ 2, 3, pp. 432--437; 39 Am.Jur.2d, Highways, Streets, and Bridges § 520, p. 921.

A parallel factual situation to that in the case at bar was decided in Harrison v. Poli-New England Theatres, 304 Mass. 123, 23 N.E.2d 99, 100 (1939), where the Supreme Court of Massachusetts held:

'It was a question of fact whether the defendant was negligent in maintaining an improper or defective marquee from which water escaped upon the way and froze and in suffering the ice to remain upon the sidewalk up to the time the plaintiff was injured.'

In Harrison the marquee was equipped with rain gutters which normally discharged the melting snow onto the roof of the adjacent building and away from the sidewalk. In Harrison, as in the case at bar, the plaintiff slipped on ice formed from melting snow which dripped from the canopy and accumulated on the sidewalk. We agree with Harrison and adopt its reasoning that such a situation raises a question of fact as to the abutting store owner's negligence.

The district court found as a fact that Montgomery Ward was negligent. Rule 52(a) of the North Dakota Rules of Civil Procedure provides that a finding of fact shall not be set aside by this court unless clearly erroneous. We cannot say that the finding of the district court was clearly erroneous, but to the contrary, we find ample evidence to support such finding. Montgomery Ward erected a canopy on the front of its store which made the area more inviting to shoppers and instilled a sense of security in pedestrians who were walking on the sidewalk in the area protected by the canopy. Under these conditions, Montgomery Ward owed a duty to the public to properly maintain its canopy in order to provide a sidewalk free from ice, such as would be expected when the sidewalk is protected by a canopy. Montgomery Ward breached this duty in omitting to properly caulk and maintain the canopy and, as a result, there was an accumulation of water which froze on the sidewalk and, accordingly, the finding of the district court that Montgomery Ward was negligent must be upheld.

Montgomery Ward next contends that it did not have actual notice of the ice patch and that upon becoming aware of the presence of the ice patch, it diligently remedied the situation. Mr. John McFarlane testified that between one and two o'clock on the afternoon of Mrs. Strandness' fall, as he was leaving the store, he also slipped and fell on the same accumulation of water and ice on the sidewalk in front of the Montgomery Ward store. He further testified that at that time he saw one of the clerks in the store laughing at him. He did not report his fall to the store manager.

Mr. Wendell Fristedt, the store manager, testified that he had been notified of the sidewalk's icy condition fifteen or twenty minutes prior to Mrs. Strandness' fall by a man whom Mr. Fristedt could not identify and that he, Mr. Fristedt, had told Mr. Irvin Larson, an employee of Montgomery Ward, to take care of the ice but he did not further cleck as to whether Mr. Larson performed this particular...