Walley v. Patake

• Decision Date: 10 January 1956
• Citation: 74 N.W.2d 130,271 Wis. 530
• Parties: Marvin Hunt WALLEY et al., Appellants, v. Mary PATAKE, individually and as adm'x of the Estate of Rudolph Patake, dec'd, Respondent.
• Court: Wisconsin Supreme Court

Page 130

74 N.W.2d 130

271 Wis. 530

Marvin Hunt WALLEY et al., Appellants, v. Mary PATAKE, individually and as adm'x of the Estate of

Rudolph Patake, dec'd, Respondent.

Supreme Court of Wisconsin.

Jan. 10, 1956.

Harvey & Harvey, Racine, Helm, Myers & Gillett, Racine, of counsel, for appellants.

Vilas H. Whaley, Racine, L. P. Baumblatt, Racine, of counsel, for respondent.

STEINLE, Justice.

The first question presented for determination is whether the complaint states a cause of action in negligence. The charge asserted in the complaint is that there was negligence on the part of the defendants in that they permitted a heavy accumulation of ice and snow to gather upon the walk, and had permitted such condition to exist for about three or four weeks previous to the injury; and further that, sometime prior to the injury, a steep slope of ice and snow was created by them on each side of the path or trench, which they failed to cover with abrasive material.

The defendants owed no duty to the plaintiffs to keep the sidewalk clear of ice and snow coming thereon from natural causes, or to guard against the risk of accident by scattering abrasive material thereon.

In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the sidewalk in front of it free from ice and snow coming thereon from natural causes or by the acts of others, or to guard against the risk of accident by scattering ashes, or using other like precautions, and will not be liable in damages to persons injured by reason of any failure to so do. 25 Am.Jur., Highways, p. 803, sec. 522.

Sec. 62.17(5), Stats., provides:

'Snow and Ice. The board of public works shall keep the sidewalks of the city clear of snow and ice in all cases where the owners or occupants of abutting lots fail to do so, and the expense of so doing in front of any lot or parcel of land shall be included in the statement to the comptroller required by paragraph (f) of subsection (3) of this section, and in his statement to the city clerk and in the special tax to be levied as therein provided. The city may also impose a fine or penalty for neglecting to keep sidewalks clear of snow and ice.'

The owners and occupiers of the premises abutting a street in a city are not responsible to individuals for injuries resulting from a failure to remove from the sidewalk accumulations of snow and ice created by natural causes, although there is a valid ordinance requiring them to remove such accumulation. The only liability is to pay the penalty prescribed by the ordinance. 1 Thompson, Negligence, p. 360, sec. 26.

In Griswold v. Camp, 1912, 149 Wis. 399, 135 N.W. 754, it appears that the plaintiff was injured when she slipped on an icy sidewalk. The city ordinance required lot owners to keep the sidewalks sprinkled with ashes or similar substance under penalty. In affirming the judgment of the lower court which dismissed the case upon the ground that the ordinance did not impose any such liability on the defendant, this court, speaking through Justice Marshall, 149 Wis. at page 401, 135 N.W. at page 755, said:

'The duty of a municipality as regards keeping its sidewalks reasonably safe for public travel, does not, generally speaking, include obviating danger to travelers using such walks from mere slipperiness produced by natural causes. Cook v. [City of] Milwaukee, 24 Wis. 270; Salzer v. City of Milwaukee, 97 Wis. 471, 73 N.W. 20. So the purpose of the ordinance in question was not to require the owners or occupants of lots to aid the city in the performance of its duty. There was no common-law duty of a person circumstanced as respondent was to protect travelers from danger of being injured by such slippery condition. That is too clear for argument.'

'It may be laid down as a general rule that one who so constructs or maintains a structure upon his premises as to cause an artificial discharge or accumulation of water upon a public way, which, by its freezing, makes the use of the way dangerous, will be held liable to one who, being rightfully upon the way and exercising due care, is injured in consequence of such dangerous condition.' 25 Am.Jur., Highways, p. 805, sec. 523.

A frequently cited case dealing with the subject confronting us is, Sherman v. City of La Crosse, 1923, 181 Wis. 51, 193 N.W. 1004, 34 A.L.R. 406, where the plaintiff, Anne Sherman, brought action against the city of La Crosse for injuries sustained as a result of falling on an icy sidewalk. Upon motion of the city, the defendant, La Crosse Refining Company, was made a party to the action. In its cross-complaint the city alleged that the slippery and unsafe condition of the sidewalk was due to the negligent conduct of the refining company in accumulating water dripping from the roof of one of its buildings and precipitating it to the sidewalk. The jury found that the accumulation of ice was formed from water discharged from the roof of the defendant, La Crosse Refining Company's building into a brick walk on the south side of said building and from there conveyed over said walk to the sidewalk in question at the place of the accident and that the defendant, La Crosse Refining Company was wanting in the exercise of ordinary care in so maintaining the building and brick walk as to cause the water from its roof to be discharged onto the sidewalk at the place of the accident. It was contended that the refining company's liability was established by the case of Adlington v. City of Viroqua, 1914, 155 Wis. 472, 144 N.W. 1130, wherein the defective condition of the sidewalk was caused by water discharged near the walk by a conveyor pipe leading from the defendant's building. The conveyor pipe emptied into a gutter which took the water under the sidewalk. The gutter, however, had frozen up, causing the water accumulated from the conveyor pipe to flow over instead of under the sidewalk. There was a deliberate and intentional purpose on the part of the owner to accumulate the water and discharge it in the street. It was contended that the brick walk was constructed in such a manner as to accumulate the water, and that there was an artificial accumulation and not a natural flow of the water which caused the icy condition of the sidewalk. The court in its opinion at page 54 of 181 Wis., at page 1005 of 193 N.W., stated:

'We have, therefore, a very usual and ordinary improvement of city property abutting on a street, not built for the purpose of accumulating and discharging water on the city sidewalk but which, perhaps, has that incidental effect. The question is whether such an improvement, having such an incidental effect, constitutes actionable negligence on the part of the property owner, when the water freezes and causes an unsafe condition of the city sidewalk. We do not think the result here should be regarded as an artificial accumulation of surface water. This brick walk, and the purpose for which it was constructed, is in no sense comparable to the conveyor pipe, and the purpose for which it was constructed, in the Adlington Case. That plainly constituted an accumulation of surface water. It was constructed for that express purpose. The situation is quite different from an ordinary improvement intended for a different purpose, which may have an incidental influence upon the natural flow of surface water. We hold that the situation here did not constitute an artificial accumulation of surface water, and that no actionable negligence on the part of the refining company is disclosed by the evidence. The judgment against it is erroneous.'

In Johnson v. Prange-Geussenhainer Co., 1942, 240 Wis. 363, 2 N.W.2d 723, the plaintiff sued to recover for injuries sustained in falling on an icy sidewalk adjacent to the premises occupied by the defendant. The icy condition was caused by water flowing from a defective drainpipe on the defendant building. The jury found that the defendant was negligent in failing to repair the pipe, and that in the exercise of ordinary care ought to have discovered the defective condition of the pipe in time to have repaired it. Clearly, an artificial condition had been created by the channeling of water over the sidewalk causing ice to form. In its opinion this court, speaking through Justice Fairchild, now Chief Justice, at page 368 of 240 Wis., at page 725 of 2 N.W.2d said:

'There was raised an issue of fact as to the cause of the icy condition of the sidewalk and an issue of law as to the responsibility between the two defendants. Of course it is elementary that plaintiff's right to recover must rest upon some wrongful or negligent act by either or both of the defendants and that had the ice been merely a natural formation no legal liability would have accrued. Griswold v. Camp, 1912, 149 Wis. 399, at page 401, 135 N.W. 754; Adlington v. [City of] Viroqua, 1914, 155 Wis. 472, at pages 475-478, 144 N.W. 1130; Note (1914) 51 L.R.A.,N.S., 309.' (Italics supplied.)

In Plasa v. Logan, 1952, 261 Wis. 640, 53 N.W.2d 720, the record indicates that the plaintiff was injured when she slipped while walking on ice accumulated on a public sidewalk in front of the defendant's hospital premises. The complaint alleged that melting snow had been artificially caught and collected in drains and gutters on the roof of the building and discharged through drainpipes directly on the surface of the ground at the rear of the premises, and thence along the driveway onto the sidewalk, causing slipperiness. The defendant demurrered to the...