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Wednesday, February 28, 2007

Ind. Decisions - Court of Appeals rules no duty to clear adjacent public sidewalks

From time to time, the ILB will showcase one of the day's opinions.

In Denison Parking and City of Indianapolis v. Davis, an 11-page (including a 1-page concurring opinion), Judge Mathias writes [most citations omitted]:

Denison Parking, Inc., (“Denison Parking”) brings this interlocutory appeal to challenge the trial court’s denial of its motion for summary judgment in a civil negligence action brought by Barbara L. Davis (“Davis”) and her husband, Jack Davis (collectively referred to as “the Davises”), for injuries Davis sustained when she slipped and fell on a public sidewalk adjacent to a Denison Parking facility. Denison Parking raises one issue on appeal that we restate as whether Denison Parking owed a duty to Davis to clear snow and ice from the public sidewalk adjacent to its property. Concluding that it did not, we reverse and remand with instructions for the trial court to enter an order granting summary judgment in favor of Denison Parking. * * *

In order to establish a claim of negligence against Denison Parking, the Davises must show that Denison Parking: (1) owed Davis a duty, (2) that Denison Parking beached its duty, and that (3) the breach proximately caused Davis’s injuries. In negligence cases, summary judgment is rarely appropriate. * * *

Denison Parking argues that it did not owe the Davises a common law duty to clear the public sidewalks of ice and snow, that it did not owe a duty to Davis based upon statute or municipal ordinance, and that it did not assume a duty to Davis under Indiana law. The Davises counter that Denison Parking’s duty to maintain the sidewalks surrounding its commercial parking facility in a reasonably safe condition for pedestrian travel arises out of (1) Indiana common law, (2) Indianapolis Municipal Code Section 931-102, and (3) Denison Parking’s own conduct in assuming a duty.

This case bears a remarkable resemblance to Lawson, where we stated:

It is well settled in Indiana that an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets and sidewalks of ice and snow. Additionally, municipal ordinances that require abutting owners or occupiers to remove snow and ice from public sidewalks do not, as a matter of law, create a duty under which an owner or occupier can be held liable to third party pedestrians. Id. (internal citations and footnote omitted). Persons are held to have assumed a duty to pedestrians on public sidewalks only when they create artificial conditions that increase risk and proximately cause injury to persons using those sidewalks.

* * *

The Davises’ next contention, that Indiana Municipal Code Section 931-1023 creates a statutory duty owed by Denison Parking, likewise must fail. It has long been held that ordinances such as Indianapolis Municipal Code Section 931-102, which the Davises attempt to rely on for protection here, are not enacted for the protection of individuals using the streets, but rather are for the benefit of the municipality. * * *

In sum, the Davises have failed to show that there exists a material issue of fact as to whether Denison Parking initially owed Davis a duty of care. To the contrary, statutory and common law clearly show that Denison Parking did not owe any duty to Davis. Additionally, the Davises have failed to designate any evidence which would create a genuine issue of material fact as to whether Denison Parking assumed a duty by creating an artificial condition which increased Davis’s risk and proximately caused her injury. Without a duty, there can be no breach. Accordingly, we reverse and remand to the trial court with instructions to grant Denison Parking’s motion for summary judgment. Reversed and remanded with instructions.

SHARNPACK, J., concurs. KIRSCH, C. J., concurs with separate opinion.

I fully concur in the decision of the majority that the trial court erred in denying Denison’s Motion for Summary Judgment. I part with my colleagues, however, regarding their conclusion that “[t]his case bears a remarkable resemblance to Lawson” referring to Lawson v. Lafayette Home Hospital, Inc., 760 N.E.2d 1126 (Ind. Ct. App. 2002). I dissented in Lawson, and, to me, there is a marked difference between the two cases. In Lawson, the public sidewalk was located between the hospital’s parking lot and the hospital. The sidewalk was the means of ingress and egress for the many patients, visitors and other business invitees who came to the hospital each day. I believe the relationship between the hospital and its invitees is very different than that between the owner of a building abutting a public sidewalk and a third party pedestrian walking down the sidewalk. It was this relationship that caused me to believe that the hospital owed a duty in Lawson, and it is the lack of such a relationship that causes me to conclude that no duty was owed here.

Posted by Marcia Oddi on February 28, 2007 12:26 PM
Posted to Ind. App.Ct. Decisions