Zachary v. City of Sapulpa
| Decision Date | 28 June 1966 |
| Docket Number | 41261,Nos. 41260,s. 41260 |
| Citation | 442 P.2d 328 |
| Parties | Alma ZACHARY, Plaintiff in Error, v. The CITY OF SAPULPA, a municipal corporation, Defendant in Error. F. C. ZACHARY, Plaintiff in Error, v. The CITY OF SAPULPA, a municipal corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. The liability of a municipal corporation for injuries from defects or obstructions in its streets is for negligence, and for negligence only; it is not an insurer of the safety of travelers, but is required to exercise ordinary or reasonable care to maintain its streets and sidewalks in a reasonably safe condition for travel by those using them in a proper manner.
2. A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injury, or for every mere inequality of irregularity in the surface of the way; it is only against danger which can or ought to be anticipated, in the exercise of reasonable care and prudence, that the municipality is bound to guard.
3. When a defect in a sidewalk is so slight that no careful or prudent person would reasonably anticipate any danger from its existence, but still an accident occurs which could have been guarded against by the exercise of extraordinary care and foresight, the question of defendant's responsibility is one of law.
4. When a plaintiff is not entitled as a matter of law to recover under the facts alleged in the petition, a demurrer thereto properly was sustained.
Appeal from the Superior Court of Creek County; G. B. (Chuck) Coryell, judge.
Personal injury action against defendant, a municipal corporation, the trial court sustained defendant's demurrer to the amended petition and plaintiffs appeal. Affirmed.
Farmer, Woolsey, Flippo & Bailey, Tulsa, for plaintiffs in error.
Dan Odell, Thomas A. Wallace, Sapulpa, for defendant in error.
This appeal involves judgments in separate tort actions against the defendant municipality. Plaintiff filed an action seeking to recover damages for personal injuries alleged to have resulted from defendant's negligence, and the concurrent negligence of plaintiff's daughter and son-in-law. A second action was brought by the husband to recover for medical expenses and loss of services. The trial court sustained demurrers to the petitions and plaintiffs filed amended petitions. Defendant refiled its demurrers which were sustained, and upon plaintiffs' election to stand upon the petitions the trial court entered judgment dismissing the actions. Plaintiffs perfected appeals in both cases. By appropriate order the appeals were consolidated for briefing and consideration, and thus require only singular reference.
Plaintiff alleged that for over 15 years defendant had maintained a drain, extending north from the sidewalk in front of the daughter's home to a sewer catch basin, to carry off surface water which flowed in the street in front of the house; and that the catch basin and storm sewer were maintained by defendant. The storm sewer was small and inadequate to carry off water from rains, and was subject to becoming clogged by leaves and debris. The storm sewer, combined with the inadequate sidewalk drain, caused water to be impounded upon the sidewalk and yard of the daughter's home and resulted in silt, slime and mud being deposited upon the sidewalk. The condition was alleged to have existed for many years prior to plaintiff's accident on June 2, 1962, with defendant having notice and knowledge of such conditions. The sidewalk drain was alleged to have been constructed by the predecessor in title of plaintiff's daughter and son-in-law.
Plaintiff charged defendant violated its duty to maintain the drain and storm sewer so there would be proper drainage, so that on each occasion of a heavy rain the clogged drain resulted in silt and slime accumulating upon the sidewalk thereby causing a dangerous condition. On the day in question, as plaintiff was leaving her daughter's home an innocent pool of muddy water concealed the fact that the sidewalk was covered with mud, silt and slime. While walking in a careful manner plaintiff slipped upon the muddy sidewalk and fell, suffering personal injuries for which damages ($75,000.00) were sought. Plaintiff charged the existence and violation of a duty owed by defendant to maintain the sidewalk drain and storm sewer in such manner as to provide proper drainage and prevent impoundage of water and deposit of mud and silt upon the sidewalk causing hazard to users of the sidewalk, and to remove same when deposited. Defendant's violation of its duties respecting these matters were alleged to have been the proximate cause of plaintiff's injuries. Other allegations of the petition concerned the nature and extent of the alleged injuries. Plaintiff eventually dismissed the cause of action against the daughter and son-in-law.
Defendant filed a Demurrer and Answer to the petition. The demurrer was upon the ground of failure of the petition to state facts sufficient to state a cause of action. 12 O.S.1961, § 267(6). The answer thereafter made general and specific denial of matters asserted as grounds of a cause of action. In appealing from the trial court's order and judgment the principal brief seeks reversal under a single proposition:
'A municipal corporation is charged with a duty of keeping its streets and sidewalks in a reasonably safe condition for the traveling public, and where a petition shows a slippery, muddy sidewalk resulting from deposits of silt, mud, and clay due to inadequate storm sewer and a defective drain from the sidewalk to a sewer catch basin of which the city had actual notice, it is error to sustain a demurrer to such petition.'
The argument supporting this proposition involves citation of a number of decisions involving a municipal corporation's liability for breach of the duty to maintain streets and sidewalks in a reasonably safe condition for ordinary use and travel. Numerous quotations purportedly stating controlling rules are quotations of editorial syllabi, which do not state the law of the case under our practice; see 12 O.S.1961, § 977. Other authorities cited and quoted at length are from decisions involving construction, operation and maintenance of a municipality's sewer system and do not require discussion. Under such authorities plaintiff urges that injury resulted from the slippery sidewalk because: (1) inadequacy of the drain and storm sewer to carry away surface water resulted in the sidewalk being covered with slippery silt; (2) defendant had actual notice and knowledge of inadequacy of the drainage system for many years. Upon this basis the conclusion is advanced that the petition stated a cause of action and the court thus erred in sustaining defendant's demurrer.
Plaintiff also cites and relies upon several decisions cited in the annotation in 16 A.L.R.2d 1290, dealing with liability of municipal corporations for pedestrian's injury, caused by slippery condition of sidewalk from deposits of earth or mud thereon. Without discussing each cited case, it is sufficient to note that review of these cases reflects that in each instance the defect complained of reasonably could be categorized as a permanently existing obstruction. See Strange v. City of St. Joseph, 112 Mo.App. 629, 87 S.W. 2, where dirt washed onto sidewalk and constituted an obstruction even in dry weather; Zieg v. City of Pittsburgh, 348 Pa. 155, 34 A.2d 511, where flagstone walk was lower than adjoining ground and street curb and formed a basin for water from nearby spring and walk was covered with water for distance of about ninety feet except in times of extreme drouth. A rule of liability based upon conditions constituting a permanent obstruction cannot be controlling in this case.
The settled rule under our decisions is that in exercise of its proprietary functions, a municipal corporation owes a primary duty to keep its sidewalks and streets in a reasonably safe condition for public use by ordinary modes of travel. Lane v. City of Tulsa, Okl., 402 P.2d 908. The parties are not in disagreement as to the fundamental duty owed by a city to persons using the city's streets. They are in serious disagreement as to application of the fundamental rules in the present case.
Two cases cited by plaintiff and discussed below adequately reflect plaintiff's theory on appeal:
Cleveland Trinidad Pav. Co. v. Mitchell, 42 Okl. 49, 140 P. 416 and City of McAlester v. Nelson, Okl., 357 P.2d 995. In the Mitchell case a company making street repairs under contract excavated an almost perpendicular step-off some four feet deep at a street intersection. In an effort to make the street passable the paving company put loose dirt against the step-off. Plaintiff was injured by stepping upon the loose earth which crumbled and caused her to fall. In this early case we announced the rule of municipal liability for negligence in failing to keep streets and sidewalks...
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Rider v. City of Norman
...Company et al. (1940),186 Okl. 506, 98 P.2d 1112; Walker v. Reeves et al. (1951), 204 Okl. 669, 233 P.2d 307; Zachary v. City of Sapulpa (1966), Okl., 442 P.2d 328. 'A municipality will not be liable for every defect or obstruction, however slight or trivial, or little likely to cause injur......