Ainey v. Rialto Amusement Co. , 135 Wash. 56 ( 1925 )

Suit for personal injury.

The defendants operate the Rialto theatre, located on Ninth street, in the city of Tacoma. The building fronts on Ninth street, and on the east abuts upon an alley which extends north and south between Ninth and Eleventh streets. The alley is twenty-one feet in width and has sidewalks. The main entrance to the theatre is from Ninth street, and one of the exits is on the alley. The plaintiff's testimony tended to show that, on the 11th of February, 1923, about six inches of snow had fallen throughout the city of Tacoma and vicinity, and that, on the next day, this snow had melted somewhat and caused it to become more or less icy or slippery, and that such was the condition of the sidewalk at the alley exit from the theatre. During the forenoon of the 12th, the defendants, to some extent, removed the ice from that portion of the sidewalk on Ninth street which was in front of their premises and sprinkled some ashes thereon, but did nothing of the kind with the alley sidewalk. Early in the forenoon of the 12th, the plaintiff attended the theatre, and when the performance was over he left by way of the alley exit. There was a sign over the door leading to the alley showing that it was an exit and that patrons of the theatre were invited to leave by that door. As the plaintiff stepped onto the sidewalk, he slipped and fell and injured himself. It was still daylight when he left the theatre. It appears, also, that plaintiff was well acquainted with the theatre and had on previous occasions left it by the alley exit. At the close of the plaintiff's case, the court sustained defendant's challenge to the sufficiency of the evidence and dismissed the action.

The rule generally laid down by the authorities is that an owner or the occupant of a building is under no legal obligation to remove the ice and snow from the sidewalk in front of his premises, which have been deposited there by the elements, or to lessen the risk of injury by placing ashes or other like material thereon; and this doctrine applies not only to persons passing on the sidewalk, but also to persons visiting the store on business or for other purposes. The basis of the rule is that it is the duty of the municipality and not of the abutting property owner to keep the streets and sidewalks in a reasonably safe condition for travel.

In 13 R.C.L. 415, the rule is stated thus:

"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 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 its failure to do so. Nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he does to the ordinary pedestrians."

This rule is supported by nearly all of the authorities. The following are some of them: City of Hartford v. Talcott,48 Conn. 525, 40 Am. Rep. 189; McGrath v. Misch, 29 R.I. 49,69 A. 8, 132 Am. St. 798; Dahlin v. Walsh, 192 Mass. 163,77 N.E. 830, 6 L.R.A. (N.S.) 615 and note; New Castle v. Kurtz, 210 Pa. St. 183, 105 Am. St. 798, 69 L.R.A. 488; 1 A. E. Annot. Cas. 943 and note; Hanley v. Fireproof Building Co.,107 Neb. 544, 186 N.W. 534, 24 A.L.R. 382 and note.

The question is not a new one in this state: In Zellers v.Seattle Lodge No. 92, Benevolent and Protective Order of Elks,94 Wash. 32, 161 P. 834, it was shown that the plaintiff was injured while walking on the sidewalk in front of defendant's property. The complaint alleged that he was injured because defendant had carelessly and negligently allowed the snow and ice to accumulate on the sidewalk and because thereof he slipped and fell. We upheld the lower court in sustaining a demurrer to the complaint and dismissing the action. There we stated the general rule as we have stated it above.

If the slippery condition of the alley sidewalk had been caused by something the respondent did, such as permitting a stream of water to flow over it and freeze, or throwing water upon the snow, then it would probably be liable in damages. The distinction is that, when the dangerous condition is caused by the elements only, there is no liability on the part of the property owner, but where he has done something to create or increase the danger, then he may be liable.

Some municipalities have ordinances requiring an abutting property owner to remove the snow and ice from the sidewalk. Many of the authorities hold that the violation of such an ordinance by the abutting property owner does not make him liable to pedestrians. Hanley v. Fireproof Building Co., supra. See, also, Zellers v. Seattle Lodge, No. 92, Benevolent andProtective Order of Elks, supra. But we need not pursue this question because it is not shown that any such ordinance exists in the city of Tacoma.

In McGrath v. Misch, supra, the court said:

"The declaration is founded upon an imaginary duty of a shopkeeper to keep the sidewalk in front of his shop safe for his customers by removing ice therefrom. The law imposes no such obligation. When the customer leaves the shop and steps upon the highway, the shopkeeper ceases to owe any duty to him in distinction from other travelers."

It is said, however, that the fact that the respondents had removed the ice from the sidewalk in front of the premises obligated them to also remove it from the sidewalk in the alley, and that the appellant, knowing that the front sidewalk had been cleared, had a right to believe that the same condition would exist as to the alley sidewalk. We cannot accept this reasoning. There was no legal duty on the respondents to remove the ice or snow from the front sidewalk, and the mere fact that they did remove it imposed no duty upon them to remove it from the alley sidewalk.

We are of the opinion that the trial court did not err.

The judgment is affirmed.

TOLMAN, C.J., MAIN, PARKER, and ASKREN, JJ., concur.