Norman v. City of Gillette , 1983 Wyo. LEXIS 280 ( 1983 )

ROSE, Justice.

PART I

The issue presented by this appeal is whether a city and an adjoining landowner will be liable for an injury to a pedestrian who, because of a barricade on the sidewalk, undertakes to walk in the street where he slips and falls while traversing a mound of snow and ice. The district judge granted summary judgment for both the city and the parties who owned the adjoining land around whose property the barricade was erected. The court will affirm.

The opinion of the court is divided into two parts because of a division on the court. Part I furnishes an introduction to the issues and deals with propriety of the summary judgment entered in favor of appel-lee-landowners, Noecker Enterprises, and Leroy A. and James D. Noecker. Part II, furnished by Justice Raper, will deal with the propriety of the summary judgment entered in favor of appellee City of Gillette.

In reviewing the propriety of a summary judgment, we look at the record from the viewpoint most favorable to the party opposing the motion, giving that party all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions. Dubus v. Dresser Industries, Wyo., 649 P.2d 198 (1982); Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981); Miller v. Reiman-Wuerth Co., Wyo., 598 P.2d 20 (1979). Against this standard, the relevant facts in this appeal show that on February 9, 1979 the appellant Norman broke his leg when he stepped into a hole in a pile of snow located in the gutter of a street in the City of Gillette.

Mr. Norman testified that he was walking along a cleared sidewalk when he encountered a barricade which blocked the sidewalk. The barricade had been constructed for purposes of protecting pedestrians from danger associated with the erection of a building on the appellees Noeck-ers’ property. When confronted by the obstruction, the appellant stepped from the curbing into the street and, in so doing, was obligated to step over a mound of snow some 18 inches in height, whereupon his foot caught in a hole or depression causing him to fall.

Norman brought suit against both Leroy and James Noecker, Noecker Enterprises and the City of Gillette, alleging that the Noeckers and defendant Noecker Enterprises had negligently barricaded the sidewalk and that the city had failed to maintain the sidewalk and street so as to provide Norman with a safe alternate walkway. All defendants filed separate answers denying the allegations of the complaint and alleging negligence on the part of appellant. The case was submitted to the court on defendants’ motions for summary judgment which were granted.

We recently reiterated the rules of this court applicable to appeals from summary judgment in Dubus v. Dresser Industries, supra, where we said:

“We have said many times that when reviewing the granting of summary judgment on appeal

[W]e have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did.... ” Seay v. Vialpando and Anderson, Wyo., 567 P.2d 285, 287; Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244, and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685. Timmons v. Reed, Wyo., 569 P.2d 112, 115 (1977). “In contemplating an appeal from a summary judgment we must also inquire from the viewpoint most favorable to the party opposing the motion. Timmons v. Reed, supra, 569 P.2d at 116; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387 (1977); Bluejacket v. Carney, Wyo., 550 P.2d 494, 497 (1976). It is settled that, in a summary judgment proceeding, the moving party has the burden of proving the absence of any genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792 (1970); Rover v. Hufsmith, Wyo., 496 P.2d 908, 910 (1972). Finally, we are reminded that negligence claims do not lend themselves readily to summary adjudication. See: Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352 (1974); Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57 (1963).” 649 P.2d at 201.

Although there is a division of the court on the applicability of our previous decisions setting out rules covering known and obvious dangers and natural accumulations of snow and ice, Sherman v. Platte County, Wyo., 642 P.2d 787 (1982),¹ there is no disagreement that in order to be found negligent, in any event, it must be shown that appellees owed a duty of reasonable care to appellant that may have been breached. Of course, if neither the city nor the Noeckers owed a duty of care to Mr. Norman, then we must affirm the granting of the summary judgment. In order to make out a cause of action in negligence, a plaintiff must be able to identify a duty of reasonable care, the breach of which has caused his injury and attendant damage. See: ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981); Beard v. Brown, Wyo., 616 P.2d 726 (1980); Danculovich v. Brown, Wyo., 593 P.2d 187 (1979). We will now address the question of duty as it relates to the Noeckers.

Appellant argues that Noecker Enterprises and Leroy and James Noecker were negligent in failing to provide him with a safe walkway around the barricade, or, in the alternative, that they negligently barricaded the sidewalk. The appellees answer these contentions by denying any negligence and by asserting no duty on their part to provide an alternative walkway. We agree with the Noeckers’ position in this regard.

In pursuing his claim that the Noeckers negligently barricaded the sidewalk or failed to keep the same safe for pedestrian travel, appellant relies on various ordinances of the City of Gillette. First of all, he relies on several ordinances which required the Noeckers, as abutting property owners, to remove snow from the sidewalk adjoining their property within 24 hours of the snowfall and that failure to do so would result in the city’s undertaking the work for which it would charge the landowner.² Mr. Norman then argues that this duty imposed an obligation upon the Noeckers to provide him with an alternative walkway which, by ordinance, they were obligated to keep clear of ice and snow.

Appellant is correct in asserting that we have held that ordinances such as those cited impose a duty upon adjoining landowners to remove natural accumulations of snow and ice from sidewalks even though no such duty existed at common law. See: Johnson v. Hawkins, supra, 622 P.2d at 943. However, in the present case, the appellees had barricaded the sidewalk with the knowledge and permission of the City of Gillette; and once that occurred, they had no duty to keep the barricaded sections of the sidewalk free and clear of snow since the barricade was intended to prevent pedestrian traffic thereon. Therefore, the only question for our consideration asks whether the Noeckers, having barricaded the sidewalk,³ nonetheless had a duty to provide appellant with a safe alternate walkway. If they did have such a duty, then, of course, the duty to remove snow imposed by the ordinance could be applied to the alternate walkway which the appel-lees intended would be utilized by pedestrians during construction of the building.

As a general rule, a contractor who undertakes a project in or near a sidewalk or street is under a duty to exercise reasonable care for the protection of those rightfully in the proximity of the work. However, the duty is, for the most part, one of placing sufficient barricades or warning devices around a dangerous obstruction or excavation. Albright v. McElroy, 207 Kan. 233, 484 P.2d 1010, 1019 (1971). The duty is breached when the contractor is negligent in barricading or warning the public of danger. Notwithstanding this duty, we have found no cases that would support appellant’s claim that the Noeckers were required to provide or construct an alternate walkway.

In our search of the law we came upon several cases involving accidents or injuries occurring on temporary walkways, but in each instance a city ordinance required the contractor to provide the walkways. See: Dougherty v. Charles H. Tompkins Co., 99 App.D.C. 348, 240 F.2d 34 (D.C.Cir.1957); Gaw v. Hew Construction Company, 300 Mass. 250, 15 N.E.2d 225 (1938); 39 Am.Jur.2d, Highways, Streets and Bridges § 548, p. 955 and annotations noted. In the absence of an ordinance requiring the construction of an alternative passageway, the proper rule to be applied is that set out in Atkinson v. Harman, 151 W.Va. 1025, 158 S.E.2d 169, 174 (1967):

“It is contended by the plaintiffs that the defendant contractors were negligent in failing to close the street and sidewalk during this construction. They assert that failing to so act placed them under a duty to construct a temporary walkway around the obstruction in the sidewalk and that their failure to provide such temporary walk constituted a breach of that duty. In the syllabus of Nester v. United Foundation Corporation and Town of Ridgeley, 136 W.Va. 336, 67 S.E.2d 533, 29 A.L.R.2d 871, this Court said: ‘No duty exists on the part of a contractor to provide or maintain a temporary way or detour around an obstruction of a street within a municipality, resulting from excavation work done by the contractor with permission of the municipality, in the absence of a contract or special circumstances.’ ”

We also find the rationale expressed by the Georgia appellate court in Hardin v. Barrett, 122 Ga.App. 156, 176 S.E.2d 455 (1970) to be persuasive. There, the defendants had contracted with a city to replace a portion of the sidewalk, and, in performing the work, barricades extending to the curbing had been constructed around the part of the walkway that had been removed. While walking down the sidewalk, the plaintiff came upon the barricade and proceeded to walk in the street where she fell in a hole, injuring herself. She sued the contractor, alleging negligence in failing to provide an alternative walkway. In affirming the granting of summary judgment, the court said:

“ * * * Other jurisdictions have frequently held in instances where a plaintiff was injured after electing to walk within the street area where the sidewalk was blocked off that a jury question was presented as to the negligence of the city in the manner in which barricades were erected, or negligence of the abutting property owner, the contractor doing the work, or the owner of an automobile parked on the sidewalk in wrongfully barricading the sidewalk but, except in actions involving defendant municipalities, we have found no case where recovery was allowed unless there existed some evidence of negligence in failing to barricade, or in maintaining the barricade or other obstacle in a negligent manner.” 176 S.E.2d at 456.

The court went on to hold that the defendant contractor had no control over the street, nor could he have appropriated the street for use as an alternative walkway. Therefore, the plaintiff could not recover unless the contractor had negligently maintained the barricade, and there was no proof to support such a conclusion.

Given these and other persuasive authorities, we are of the opinion that appellee-Noeckers did not owe a duty to appellant to provide an alternative walkway for Mr. Norman, and, since appellant failed to establish any negligence in maintaining or erecting the barricade, supra fn. 3, the granting of summary judgment in favor of Noecker Enterprises and Leroy and James Noecker was proper.⁴

Next, we reject appellant’s contention that the trial judge erred in refusing to grant his Rule 40.1(b)(2), W.R.C.P., motion for removal of the trial judge for cause. Appellant failed to attach the necessary affidavit to his motion as required by the rule.⁵

RAPER, Justice.

PART II

We turn now to appellant’s argument that the district court erred in granting appellee City of Gillette’s motion for summary judgment. As to the City of Gillette, this case can be characterized as nothing more than the usual slip and fall case in which an unfortunate accident occurred in the presence of a known and obvious danger presented by a natural accumulation of snow and ice. This court has dealt with similar cases on numerous occasions. Sherman v. Platte County, Wyo., 642 P.2d 787 (1982); Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981); Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); LeGrande v. Misner, Wyo., 490 P.2d 1252 (1971); Watts v. Holmes, Wyo., 386 P.2d 718 (1963).

In Sherman v. Platte County, supra, we summarized our views in regard to slip and fall cases involving the known and obvious danger of a natural accumulation of snow and ice when, after citing and quoting from Johnson, Bluejacket, LeGrande and Watts, supra, we said:

“In reality, it is apparent that these cases have involved two rules. 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.

The facts before the court in this case make it clear that the aforementioned rules apply to deny appellant’s claim.

In his deposition, appellant admitted that he was aware of the danger presented by the snow and ice he attempted to traverse. In fact, he admitted that the way into the street and around the barricaded portion of the sidewalk was clear within three feet of where he slipped and fell, yet he chose to cross the snow and ice which caused his fall. A photocopy of a photograph taken of the accident scene on the following day, included in the record by appellant, confirms the fact that the street and sidewalk were virtually clear everywhere except right next to the barricaded area. It is obvious that, apart from snow and ice being a known and obvious danger as a matter of law, in this case it was also a matter of fact. Appellant was aware of the danger presented by the snow and ice on which he slipped, and he consciously chose to take that more dangerous route rather than a clear path.

As to the nature of the snow and ice appellant slipped on, appellant referred to it in his affidavit in opposition to the motion for summary judgment as a “drift” of snow. Throughout his deposition, appellant referred to the snow and ice in question as that snow the City of Gillette had failed to “clear off” or “clean off” of the street. From that, it can only be concluded that the snow and ice referred to were nothing more than a natural accumulation which had not been removed. We were unable to discover in the record anywhere where appellant alleged that the snow and ice he slipped on were anything but a natural accumulation. At one point in appellant’s deposition grading operations by the City of Gillette were alluded to in connection with the snow and ice in question. That colloquy, however, did not indicate that the ice and snow were other than a natural accumulation. Even after examining the photocopy of the picture referred to earlier, we are unable to say that the snow in question was anything more than a natural accumulation which had not been cleared because of its close proximity to the barricade.

In fact, appellant’s complaint against the City of Gillette is not aimed at any negligence in creating an artificial or unnatural accumulation of snow. He complains that the city was negligent in allowing the sidewalk to be barricaded so that he was forced into the street to continue his journey. We have already held that there was no negligence in allowing the barricade. We now hold, from the undisputed evidence in the record, that the snow or ice he slipped on was nothing more than a natural accumulation.

Appellant cites Bieber v. City of Newcastle, 242 F.Supp. 457 (D.C.Wyo.1965) for the proposition that the City of Gillette had a duty to clear the street where he slipped and fell. That case dealt with an uncovered, nine-foot deep hole in a sidewalk with which the unsuspecting plaintiff had an unfortunate encounter. Judge Kerr, citing case law from this court, stated:

“In Wyoming, the municipal corporation owes a duty to the traveling public to keep its streets and sidewalks in a reasonably safe condition and in reasonably good repair for the traveling public. * * *” 242 F.Supp. at 458.

That case, however, did not deal with the particular problem presented by snow and ice which are natural conditions that prevail at the time of year this accident occurred and is, therefore, of little value here.

As the court said in Lyman v. Town of Cornwall, 30 Conn.Sup. 610, 318 A.2d 129, 131 (1973), and with which we agree, in rigorous climates — like ours in Wyoming— the duty of cities and towns, with respect to snow and ice on public ways, differs from the general duty; it is, and must out of necessity be, very limited.

In Smith v. Town of Lander, 67 Wyo. 121, 215 P.2d 861 (1950), this court addressed the duty of municipalities in regard to snow and ice on streets and sidewalks. This court held, there, that cities are under no obligation to keep crosswalks and streets clear of natural accumulations of ice, slush, or snow; to require otherwise would be impractical and cause severe financial hardship. The court reasoned that:

“ * * * ‘It is generally held that a municipality or other public authority is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes, provided the street or walk is properly constructed, and no other defect is shown. The reasons commonly given for so holding are that it is not one of the law’s reasonable requirements that a municipality should remove from the many miles of walks the natural accumulation of ice and snow, because such a requirement is impracticable from the nature of things, and that when these conditions exist, they are generally obvious, so that travelers know of them and assume the risk. * * * ’” 215 P.2d at 863.

See also, Morrison v. City of Anchorage, Alaska, 390 P.2d 782 (1964) (no liability for accumulation of slush next to curb); Nelson v. City of Tacoma, 19 Wash.App. 807, 577 P.2d 986 (1978) (slippery condition of street due to natural causes not actionable; city not insurer or guarantor of safety of travelers under those conditions); and West v. Provo City Corp., 27 Utah 2d 306, 495 P.2d 1251 (1972) (cities not liable for sidewalk injuries caused by a natural accumulation of ice and snow).

From those decisions and our review of the law elsewhere, we are unable to find where the City of Gillette had a duty to remove the natural accumulation of ice and snow on which appellant slipped. It is clear that where the forces of nature combine to create the special problem presented by snow and ice, municipalities cannot be held to a strict duty to remove every potential danger caused by said snow and ice. The thrust of our past decisions is that the danger presented by accumulations of snow and ice does not generally create liability because of their natural character. We refuse to now make the City of Gillette an insurer for all who slip and fall on ice and snow accumulated on its public ways. Even if we found that the City of Gillette had a duty to clear a way around the barricaded sidewalk, we would have to say that the record shows that it admirably met any such duty. Appellant had to literally seek out the dangerous route he took rather than follow the acknowledged clear route around the barricade.

Appellant’s regrettable accident was, as we have indicated, nothing more than a slip and fall case in which our oft-stated rules apply to deny his recovery against the City of Gillette.

Affirmed.

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

2 . The ordinances relied upon, as quoted in the record, state:

“ ‘Section 18-12-1:

“ ‘The owners or occupants of any real estate in the city shall be required to remove the snow from the sidewalk adjoining such property within twenty-four hours after the lay of the snow; provided, that only the snow lying on the sidewalks may be pushed into the streets; and provided further that no accumulation of snow from privately owned lands or from parking areas shall be removed and pushed into the street. (Ord. No. 489, § 1, 2-1-65.)

“ ‘Section 18-13:

“ ‘If snow or other obstruction is not removed from the sidewalks by the owner or occupant of abutting property in accordance with the provisions of sections 18-12 and 18-12.1, such snow or other obstruction shall be removed by the city, without notice to the property owner or occupant, and the expense of such removal shall be assessed on the property abutting the sidewalk from which the snow or other obstruction is removed and such expense shall be certified and collected as other taxes; provided, that nothing in this section contained shall be construed to relieve the owner, occupant or other person. “ ‘[Sic] from any obligation or penalty in relation to keeping sidewalks free from accumulations of snow, ice, mud, waste and offensive material and removing the same under any provisions of this Code or other ordinance of the city.

“ ‘It shall be the duty of the chief of police to carry out the provisions of this section. (C.O. 1948, §§ 247, 249.)’ ”

3 . As we have already stated, appellant also alleged in his complaint that the appellees had negligently barricaded the sidewalk, but the record reflects that appellant failed to support this claim with any evidence. In light of this, we believe the trial court correctly determined that there was no material issue of fact concerning any negligence in constructing or placing the barricade on the sidewalk itself, especially considering the unimpeached testimony of appellees that the barricade met all ordinances and was erected with the city’s permission. Appellant attempted to support the claim by alleging that the Noeckers had failed to acquire the necessary permits for erecting and maintaining the barricade. In our review of the record we could find no ordinance requiring such a permit.

4 . The conclusion we reach is supported by the record notwithstanding the question of whether or not the barricade could be considered a proximate cause of appellant’s injury. See: Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765 (1945); Johnson v. Rockford, 35 Ill.App.2d 107, 182 N.E.2d 240, 93 A.L.R.2d 1178 (1962).

5 . We also note that appellant failed to support this argument with any cogent authority and, in fact, argued with respect to Rule 40.1(b)(1), W.R.C.P., rather than Rule 40.1(b)(2), W.R. C.P., which was the subject of his actual motion filed with the trial court.