Norman v. City of Gillette

ROSE, Justice,

with whom THOMAS, Justice, joins, dissenting in part.

I dissent from “Part II” of the majority opinion affirming the granting of the summary judgment in favor of the City of Gillette. In my opinion, the record supports the existence of a material issue of fact concerning the negligence of the City and, for the reasons contained in this dissent, I would have reversed the trial court’s decision in that regard.

Appellant Norman has alleged in his complaint that the City of Gillette was negligent in permitting the sidewalk to be barricaded, and in failing to maintain the street so that appellant had a safe alternate walkway. The City responded to this complaint by denying all negligence on its part and relied on appellant’s deposition in support of its motion for summary judgment. My review of the record and the case law on the subject indicates that we should hold that the granting of the summary judgment in the City’s favor was error.

It is well settled that a municipality owes a duty to the traveling public to keep its streets and sidewalks in good repair and in reasonably safe condition. Bieber v. City of Newcastle, 242 F.Supp. 457 (D.C.Wyo.1965). In discharging this duty, a municipality or its agents must exercise reasonable or ordinary care to see that its public ways are maintained in a condition which makes travel in the usual modes and in the customary manner reasonably safe. 19 McQuillin, Municipal Corporations § 54.35e, p. 85 (3rd Ed. 1967). Where ice and snow on the public sidewalk is concerned, the general rule is:

“According to most, but not all decisions, a municipality is liable for injuries sustained on snowy or icy sidewalks where the ice and snow has formed into ridges or drifts, in a rough or uneven condition, or where the snow or ice is permitted to remain on the sidewalk and to be traveled over by pedestrians for such a length of time that it became rough, rounded, uneven and irregular, rendering the walk dangerous for travel. Indeed, an early case declared that snow and ice, though existing for a long time, do not charge the city with negligence unless accumulations take the shape of ridges or hills. “An icy ridge on the sidewalk, to be actionable, must be sufficiently substantial to constitute an obstruction dangerous to the public. Therefore, a municipality is liable only for unusual and especially dangerous formations of snow and ice on a sidewalk, while it is not liable for general conditions produced by alternate freezing and thawing. Where snow and ice on a sidewalk are permitted to remain until the surface thereof, by thawing and freezing, or by the reason of travel there-over, has become rough, uneven, rigid and slippery, so as to become an individualized and comparatively isolated obstruction to travel, and where this condition had existed for such a length of time that it had become known to the public au*705thorities or ought to have become known to them in the exercise of reasonable vigilance, the municipality will be liable for damages to one injured while attempting, in the exercise of ordinary care, to pass over such sidewalk. However, no precise limit can be established to determine what height and extent an icy ridge must reach in order to be actionable as a defect; but there is some merit in the suggestion that, under this rule, the. ice, in order to constitute a defect must, while adhering to the walk, assume a form which would be a structural defect if the walk were itself so constructed.
“The thickness of the snow or ice, it seems, is of no consequence.” (Footnotes omitted.) 19 McQuillin, Municipal Corporations, § 54.84e, pp. 235-237.

Assuming this to be the proper rule identifying the municipalities’ duty with respect to ice and snow on sidewalks, the issue here is whether the same duty is owed by the municipality when the pedestrian is forced, with permission of the municipality, to use the public street as a walkway.

Appellees have devoted much of their briefs and oral argument to positioning this case within the boundaries of our prior slip- and-fall holdings. Unlike the majority, I am convinced that the facts at bar distinguish this case from most of these previously announced rules.

In Sherman v. Platte County, Wyo., 642 P.2d 787 (1982),1 the appellant suffered an injury to her ankle when she slipped and fell on a patch of ice in a parking lot. In upholding the verdict of no negligence upon the part of either the plaintiff or the defendant, we summarized the Wyoming rules as follows:

“ * * * First there is the rule that no duty exists which requires either the removal of an obvious danger or a warning of its existence. Second is the rule that no duty exists to remove the natural accumulation of snow and ice. The latter rule broadens the protection accorded possessors of land under the former rule. It covers that class of cases where the ice and snow naturally accumulate in a fashion where there is a lurking danger, i.e., the ice is covered by the snow. However, for that rule to apply, the accumulation must be the result of natural forces and not caused by the possessor of the land. Nonetheless, whenever the danger is obvious or at least as well known to the plaintiff as it is to the defendant landowner, there exists no duty to remove the danger or warn the plaintiff of its existence.” 642 P.2d at 789.

These concepts must be considered in conjunction with what was said in Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981), where we held that, in the absence of an ordinance, adjoining landowners have no duty to keep the sidewalks in front of their premises clear of natural and obvious accumulations of snow and ice. Johnson v. Hawkins, supra, 622 P.2d at 943. These cases stand for the proposition that injured plaintiffs in Wyoming can only recover for slips and falls which result from unnatural accumulations of snow and ice that are shown not to have been known by or obvious to the plaintiff.

The appellees attempt to fit the facts of this case into the confines of the above-quoted rule by interpreting Mr. Norman’s deposition to say that he fell only because of the snow and ice,2 that he saw the mound and that he knew a dangerous condition was created thereby. While the majority opinion embraces that contention, under the facts as developed in appellant’s deposition I cannot agree.

*706The problem with the reliance by appel-lees and the majority of this court on this deposition testimony is that Mr. Norman also testified that he fell because he was forced into the street by the barricade and, while attempting to negotiate a mound of snow, his foot caught in a depression or hole, causing him to fall.3 The record further reveals that the snow in the gutter may have been piled there through plowing or grading and, although appellant knew from the footprints that others had traveled the same route, he looked but could not see the hole or depression which caused his fall. Given these facts, I am of the opinion that a material issue of fact was structured with respect to whether or not the accumulation of snow was natural and whether or not it presented a known and obvious danger to appellant. Unlike the majority, I cannot say that this case falls within the rule of Sherman v. Platte County, supra, so that the granting of summary judgment was appropriate.

Being mindful of our previous conclusion having to do with the questionable application of the known-and-obvious-danger or natural-accumulation rules, I view the important question in this part of the appeal to be whether or not the City of Gillette’s duty is different — given the fact that Mr. Norman fell in the street — than it would have been had he fallen on the sidewalk. There being no Wyoming case law on this point, I will look to other jurisdictions for my resolution to this question.

In Mills v. City of Springfield, 166 Ohio St. 412, 75 Abs. 150, 142 N.E.2d 859 (1956), the plaintiff fell and was injured while attempting to traverse a large mound of snow caused by plowing activities, and she brought suit against the city alleging negligence. In denying recovery, the court rejected plaintiff’s contention that the city was on notice of the dangerous condition, but observed that the city could be responsible for creating dangerous conditions hazardous to pedestrians lawfully in the streets. In explaining this the court stated:

“ * * * After all, pedestrians have the right to use a street when necessity therefor arises, and it would seem that a city should be obligated to exercise the same degree of care with respect to highways over which pedestrians are required to walk as that which is applicable to sidewalks.” 142 N.E.2d at 864.

Similarly, in Bacsick v. Barnes, 234 Pa.Supr. 616, 341 A.2d 157 (1975), the court held that the city could be liable for an injury suffered by a pedestrian where, when the pedestrian was forced into the street because of a blocked sidewalk, he was struck by a car. The court reasoned that hills and ridges of snow caused by removal activities are unnatural rather than natural accumulations, and if allowed to remain for an unreasonable length of time the city is on notice of the danger posed to pedestrians. Id., 341 A.2d at 160-161. Finally, in Squil-lace v. Village of Mountain Iron, 223 Minn. 8, 26 N.W.2d 197 (1946), the court upheld an award of damages to the plaintiff who was compelled to walk in the street because the sidewalks were blocked by snow. The court first noted that the municipality had the exclusive duty to keep its streets and sidewalks safe for travel, and then went on to conclude that the duty to keep sidewalks safe can be applied to the street area when a pedestrian is compelled to travel therein:

“It is true, the foregoing decisions relate to the obligations of a city with reference to its walks rather than to its streets. The obligations placed upon a municipality in keeping its walks reasonably safe for pedestrian travel might not necessarily be applicable insofar as its streets are concerned. Here, however, because of the failure of the municipality to clear *707the sidewalk which plaintiff ordinarily would have used in going to his home, it became necessary for him to use the street immediately adjoining it. Under such circumstances, it would seem that defendant was obligated to exercise the same degree of care with reference to streets which pedestrians were forced to use in lieu of sidewalks as that which would be applicable ordinarily to sidewalks. In substance we have so held in Thoorsell v. City of Virginia, 138 Minn. 55, 58, 163 N.W. 976, 977, where we stated: ‘ * * * It is true that the use of the street outside of the sidewalk is primarily for traffic by teams and other vehicles, and the use of the sidewalk primarily for pedestrians, but pedestrians still have the right to use the street when the necessity arises. It has never been held, to our knowledge, that they have not such right, or that the duty of a municipality to use reasonable care to keep the streets in a safe condition does not extend to making them reasonably safe for pedestrians who have occasion to be upon that portion of the street ordinarily traveled by vehicles.’ (Italics supplied.) See, also, Barrett v. City of Virginia, 179 Minn. 118, 228 N.W. 350; Mathieson v. City of Duluth, 201 Minn. 290, 276 N.W. 222.” 26 N.W.2d at 203.

See also: Nelson v. City of Tacoma, 19 Wash.App. 807, 577 P.2d 986 (1978), citing the rule of Squillace v. Village of Iron Mountain, supra; Annot., 93 A.L.R.2d 1187.

Applying these authorities to the present case, I am of the opinion that the record reflects material issues of fact with respect to the liability of the City of Gillette for appellant’s injuries. The evidence is clear that appellant was compelled to walk into the street as a result of an obstruction or barricade on the sidewalk placed thereon with the City’s permission. It is also undisputed that the weather in the area had been cold and snowy most of January and early February of 1979, and that the City was on notice that pedestrians would be compelled to enter the street to pass by the area enclosed by the barricade. Finally, the un-controverted facts establish that the mound was possibly caused by plowing activities, and that appellant fell due to a hole that he alleges he did not and could not see. I can only conclude from all of this that there were material issues of fact concerning whether or not the City had breached its duty to appellant to keep the street in a reasonably safe condition for pedestrian travel. The granting of the summary judgment in favor of the City of Gillette was erroneous; there are sufficient questions of fact to require a trial on the matter.

. For other cases see: Watts v. Holmes, Wyo., 386 P.2d 718 (1963); Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976). We have applied this “known and obvious — natural accumulation” rule to affirm summary judgments in the past. See: Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981), and Bluejacket v. Carney, supra.

. Mr. Norman testified:

“Q. Did you fall because of the snow and ice?
“A. Yes, I did. That’s what caused it.”

. Appellant testified as follows:

“Q. Bill, let me ask you to explain, I guess, in one sentence why you fell?
“A. Why I fell?
“Q. Yeah.
“A. Because I was forced to step off the— off the sidewalk into a snow, icy area with holes in it, and as I stepped off the curb, my foot went out from underneath me and it caught.” (Emphasis added.)