Votsis v. Ward's Coffee Shop, Inc.
Decision Date | 14 January 1977 |
Docket Number | No. 751460,751460 |
Citation | 217 Va. 652,231 S.E.2d 236 |
Parties | Katherine K. VOTSIS v. WARD'S COFFEE SHOP, INCORPORATED and Bud's Super Market, Inc. Record |
Court | Virginia Supreme Court |
Frank F. Arness, Portsmouth (Nunnally & Arness, Portsmouth, on brief), for plaintiff-in-error.
Richard S. Harman, Worth D. Banner, Norfolk (Douglas B. Smith, Seawell, McCoy, Dalton, Hughes, Gore & Timms, White, Reynolds, Smith, Winters & Lucas, Norfolk, on briefs), for defendants-in-error.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In this negligence case, we consider the liability of occupiers of private property, abutting a public sidewalk, for injuries sustained by a pedestrian who fell on that portion of the sidewalk which was used as a driveway from a public street into the property, a parking lot.
Appellant Katherine K. Votsis, the plaintiff below, sued the City of Norfolk and appellees Ward's Coffee Shop, Incorporated and Bud's Super Market, Inc. for damages allegedly sustained in February of 1974 in that city. Plaintiff alleged in her amended motion for judgment, as to Ward's and Bud's (hereinafter referred to a defendants), that she was walking along a public sidewalk when she fell as a result of 'a dangerous and defective condition in said sidewalk' which existed in that portion of a driveway extending from the curb of Hampton Boulevard, a public street, across the sidewalk to a parking area occupied, maintained and controlled by defendants. She also alleged such driveway was 'constructed, controlled, used and maintained by said defendants for their own special use and benefit.'
Additionally, she alleged defendants 'permitted, allowed and directed vehicular traffic, both automobiles and trucks, over said public sidewalk from Hampton Boulevard in which the curb had been cut away to make (such) driveway' and that the defendants 'knew or should have known that the . . . sidewalk was not adequately constructed to carry (the) heavy and frequent vehicular traffic', which caused the 'undermining and breaking down of the . . . sidewalk's foundation, resulting in the dangerous defect, causing the plaintiff's fall and injuries'.* She charged that defendants had a duty 'of constructing, using, maintaining, and repairing such driveway crossing the aforesaid public sidewalk' so as to keep the sidewalk 'reasonably safe for the use of pedestrians traversing it.'
Demurrers filed by defendants were sustained by the trial court on the ground the city had the non-delegable duty 'to exercise reasonable care in keeping the streets and sidewalks over which (it had) exclusive power and control in a reasonably safe condition for travel by the public' and that such duty cannot, even partly, be imposed on the occupants of abutting property under the facts here alleged. We awarded plaintiff a writ of error to the August 6, 1975 final order below which dismissed the action as to defendants.
Viewing the allegations of the amended motion for judgment as we must on demurrer, and accepting as true all material facts which are well-pleaded but not necessarily approving the conclusions of law stated by the pleader, Ames v. American National Bank, 163 Va. 1, 37--38, 176 S.E. 204, 215--16 (1934), the sole issue is whether the plaintiff has set forth a cause of action against the defendants. More precisely, the question is whether, under the facts alleged, there is a duty upon the occupants of private property abutting a public sidewalk to maintain such sidewalk in a safe condition for use by the public.
In Virginia, a city has the positive and non-delegable duty to keep and maintain its streets and sidewalks in repair and in safe condition for public travel. The city is not an insurer against injuries, but it is liable for a negligent failure to discharge the duty. City of Richmond v. Branch, 205 Va. 424, 428, 137 S.E.2d 882, 885 (1964); Noble v. City of Richmond, 72 Va. (31 Gratt.) 271, 274--75 (1879). Plaintiff acknowledges the foregoing general rule and agrees there is no duty upon the abutting property owner or occupier, merely because he is an abutter, to maintain the safe condition of the adjacent public sidewalks. She urges us, however, to apply an...
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