Harris v. Sanders , 142 Or. App. 126 ( 1996 )

LEESON, J.

Plaintiff appeals from a directed verdict for defendants on her claim that defendants were negligent per se,¹ because they violated a Dallas city ordinance. The trial court ruled that, as a matter of law, the ordinance does not impose a duty on abutting landowners to remove leaves from sidewalks. We reverse and remand.

Plaintiff seriously injured her ankle when she slipped and fell on a public sidewalk in Dallas. Defendants Sanders own the Blue Garden Restaurant that abuts the sidewalk. Defendants Dreiszus own the commercial property next door that also abuts the sidewalk. Plaintiff fell when she was walking on the sidewalk in front of either or both of defendants’ properties. She testified that she slipped on wet leaves that had been allowed to accumulate on the sidewalk underneath a tree that was located on city property along the public sidewalk in front of defendants’ properties.

Plaintiffs theory of liability is that Dallas City Code (DCC) section 5.564 imposes liability on abutting landowners who “fail to maintain the sidewalks free from leaves.” Defendants moved for a directed verdict on the ground that DCC 5.564(3) is an ordinance about “snow and ice removal and defective sidewalks [and] says absolutely nothing about leaves.” Plaintiff opposed the motion, contending that the court could not say that, as a matter of law, the phrase, “other similar conditions,” does not encompass the situation in this case.

DCC 5.564 provides:

“(1) No owner or person in charge of property, improved or unimproved, abutting on a public sidewalk, shall permit:

“(a) Snow to remain on the sidewalk for a period longer than the first two hours of daylight after the snow has fallen.

“(b) Ice to remain on the sidewalk for more than two hours of daylight after the ice has formed, unless the ice is covered with sand, ashes or other suitable material to assure safe travel.

“(2) No owner of property, improved or unimproved, abutting on a public sidewalk, shall permit the sidewalk to deteriorate to such a condition that, because of cracks, chipping, weeds, settling, covering by dirt, or other similar occurrences, the sidewalk becomes a hazard to persons using it.

“(3) The city shall not be liable to any person for loss or injury to a person or property suffered or sustained by reason of any accident on sidewalks caused by ice, snow, encumbrances, obstructions, cracks, chipping, weeds, settling, holes covered by dirt, or other similar conditions. Owners of abutting property shall maintain sidewalks free from such conditions and are liable for any and all injuries to persons or property arising as a result of their failure to so maintain the sidewalks.” (Emphasis supplied.)

The trial court ruled that, as a matter of law, leaves cannot constitute “other similar conditions” for purposes of establishing liability under the ordinance. It granted defendants’ motion for a directed verdict and entered judgment for defendants. In assigning error to that ruling, plaintiff contends that an accumulation of leaves can constitute one of the “other similar conditions” encompassed by DCC 5.564(3). Defendants respond that the ordinance does not impose on abutting landowners a duty to remove leaves that have fallen on public sidewalks.

Whether the liability imposed by DCC 5.564(3) can include a duty for abutting landowners to maintain sidewalks free from leaves is a question of legislative intent. We apply to municipal ordinances the same rules that govern the construction of statutes. Lane County v. Heintz Const. Co. et al, 228 Or 152, 157, 364 P2d 627 (1961). We first examine the text of the ordinance in context, giving the words their plain, natural and ordinary meanings. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993).

DCC 5.564(3) requires abutting landowners to keep sidewalks free from “ice, snow, encumbrances, obstructions, cracks, chipping, weeds, settling, holes covered by dirt, or other similar conditions.” The term “other similar conditions” reflects the city’s intent not to limit the ordinance to the conditions specifically enumerated.

The trial court reasoned that, because “the existence of leaves on a sidewalk in Oregon is something that is quite commonly known,” it is significant that leaves are not specifically mentioned in DCC 5.564. According to the court, the condition in the ordinance most analogous to an accumulation of leaves “is probably the word encumbrances.” Relying on the definition of the term “encumbrance” in Black’s Law Dictionary 908 (4th ed 1968),² it concluded as a matter of law that leaves cannot constitute an encumbrance and that therefore they cannot qualify as one of the “other similar conditions” specified in DCC 5.654. However, unlike the legal definition, the ordinary meaning of encumbrance is “to encumber,” which in turn means “to impede or hamper the natural or requisite function or activity [of something].” Webster’s Third New Int’l Dictionary 747 (unabridged ed 1976). The function of a sidewalk is to allow passage by pedestrians and others permitted to use it. The obvious intent of DCC 5.564 is to assure safe sidewalk conditions. DCC 5.564(3) unquestionably imposes liability on abutting landowners for failure to remove encumbrances. It was error for the trial court to conclude as a matter of law that leaves cannot constitute an encumbrance or another condition similar to an encumbrance.

The trial court’s analysis also implicitly assumes that the phrase “other similar conditions” in DCC 5.564(3) includes only conditions analogous to or derivative of one of the enumerated conditions. Inclusion of “other similar conditions” reflects the city’s intent not to limit DCC 5.564 to the specifically enumerated conditions. In the context in which it appears, “other similar conditions” refers to conditions that have the same effects as those enumerated.

It is true, as defendants argue, that DCC 5.564(1) specifically addresses only ice and snow. However, the reasons that ice and snow need to be removed from sidewalks are that they are slippery and can conceal other conditions that are capable of causing harm to users of sidewalks. DCC 5.564(2) lists a variety of conditions that constitute a deterioration of a sidewalk, in that they impair its condition, impeding its use for the intended purpose. See Webster’s at 616 (“deteriorate” means to become impaired in quality, state or condition). They are similar to ice and snow in that they can create hazards for sidewalk users. DCC 5.564(3) imposes liability on abutting landowners for the conditions listed in subsections (1) and (2), along with encumbrances, obstructions and “other similar conditions.” An accumulation of wet leaves can be slippery and can mask other dangers. As a matter of law, an accumulation of leaves can be one of the “other similar conditions” for which the ordinance imposes duties and liabilities on abutting landowners.

Plaintiff testified that, as she approached the Blue Garden Restaurant, she noticed water running off the sign on the outside of the building and altered her course slightly to avoid the water. She slipped and fell in the vicinity of a tree “that had a little cement cut out.” She further testified that the leaves on which she fell were brown, wet and “mushy-like” and “had been there for awhile.” Plaintiff was entitled to have the jury determine whether, on the facts presented in this case, the leaves on which she slipped constituted a hazard and whether her injury resulted from defendants’ failure to keep the sidewalk free from the alleged accumulation of leaves.

The trial court erred in granting defendants’ motion for a directed verdict.

Reversed and remanded.

1 Plaintiffs claim is more properly characterized as “statutory liability.” Negligence per se refers to a standard of care that the law imposes within a cause of action for negligence. Gattman v. Favro, 306 Or 11, 15 n 3, 757 P2d 402 (1988). Under that theory, a plaintiff may invoke a statute or other governmental rule to supply the standard of care that the tortfeasor is expected to have met, even though the statute or rule neither expressly nor impliedly gives a person injured by its violation any claim for damages. Shahtout v. Emco Garbage Co., 298 Or 598, 601, 695 P2d 897 (1985). In contrast, statutory liability arises as a legal right created by statute, without regard to the elements of a common-law negligence action. Gattman, 306 Or at 15. Any issue of foreseeability is either immaterial or has already been determined by the legislative body that created the right. Id. Statutory liability is imposed if the plaintiff can show that the injury suffered resulted from violation of the statute, and that the plaintiff is among the group that the statute was intended to protect. Bellikka v. Green, 306 Or 630, 636, 762 P2d 997 (1988). In this case, the dispute requires a determination of whether defendants violated a Dallas city ordinance.

2 For the term "encumbrance,” Black’s Law Dictionary instructs the reader to “See Incumbrance” and defines that term as “Any right to, or interest in, land which may subsist in another to the diminution of its value, but consistent with the passing of the fee.” The context of DCC 5.564 makes it clear that the legal definition of encumbrance is not the definition contemplated by the drafters of the ordinance.