Weisner v. Mayor of Rockville

Finan, J., delivered the opinion of the Court. ²²⁷ The winter of 1960-61 was a severe one in the Town of Rockville, Maryland. During February 1961, there had been three snowfalls prior to the 17th, the last having been on the 12th. The cleaning of snow from the streets and sidewalks had resulted in snow being piled in banks between the streets and sidewalks, in varying heights up to three feet. The temperature was such that a cycle of freezing at night and thawing during the day had persisted.

On the morning of February 17, the appellant (plaintiff below) Lois Weisner, escorted her five-year old daughter to the kindergarten of Twinbrook Elementary School, located on Wainwright Avenue in Rockville. She arrived at the school shortly before 9:00 a.m. and parked her car parallel to the curb. She and the child alighted and walked to the rear of their car at which point they were separated from the sidewalk, which ran parallel to Wainwright Avenue and sloped toward Ardennes Avenue, by a snowbank three feet high. It was necessary for the appellant and her daughter to climb over the snowbank to reach the sidewalk.

The snow had been shoveled from the sidewalk and it appeared clear. After stepping onto the sidewalk and walking hand in hand with her daughter, the appellant took approximately three steps when she lost her footing, slipped and fell, as did her daughter. Other individuals had negotiated the sidewalk without mishap shortly prior to the accident. The officer, from the Montgomery County Police Department, who was called to' the scene stated that when he arrived “there was a thin sheet of ice on the sidewalk.” One of the witnesses, a teacher at the school, when asked whether on the afternoon of February 16 the spot where the appellant fell was the “most wet” area of the sidewalk and whether this condition had been called to the attention of the janitors of the school and that on some mornings “they had been out there trying to do whatever they could to clear it up,” replied in the affirmative.

The injuries sustained by the appellant were quite severe and of a permanent nature. The husband, who is also an appellant, had, with his wife, previously entered suit against the Board of Education of Montgomery County, but the action of the lower court in sustaining a demurrer to the suit was affirmed by this Court (Judge Hammond, now Chief Judge) on the basis of governmental immunity ²²⁸ inuring to the benefit of the defendant. Weisner v. Bd. of Education, 237 Md. 391 , 206 A. 2d 560 (1965). At the conclusion of the appellants’ case, Judge Shook granted the appellee’s (municipality) motion for a directed verdict in its favor from which action this appeal has been taken.

Maryland law is in accord with the general principle that a municipal corporation owes a duty to persons lawfully using public streets and sidewalks under its control to make such public ways reasonably safe for passage, Pierce v. Baltimore, 220 Md. 286, 290 , 151 A. 2d 915 , 917 (1958); 19 McQuillin, Municipal Corporations (3rd Ed. 1950), § 54.02 pp. 12-13. However this duty is not an absolute one making the municipality an insurer of safe passage, E. Coast Lines v. M. & C. C. of Balto., 190 Md. 256, 277 , 58 A. 2d 290, 300 (1948). In order to hold a municipal corporation liable for injuries caused by its alleged negligence in failing to keep sidewalks under its control free of dangerous conditions, including accumulations of ice and snow, the plaintiff must show that the municipality had either actual or constructive notice of such condition; for as was said in Leonard v. Lee, 191 Md. 426, 431 , 62 A. 2d 259, 261 (1948) : “The duty owed by a municipal corporation to those lawfully using the sidewalks under its control is not that of an insurer of their safe passage. Where there are dangerous obstructions or depressions of which the municipal authorities have actual notice or which hafue existed long enough to give constructive notice, a municipality is liable if a person is. injured because of such condition.” (Emphasis supplied.) Consequently, the question which this Court must decide is whether or not there was any evidence produced at the trial from which the jury may have drawn a reasonable inference that the appellee had either actual or constructive notice of the alleged icy condition of the sidewalk.

The record is completely devoid of any evidence which would show that the appellee had actual notice of the thin sheet of ice on Wainwright Avenue; thus the remaining query is whether there was sufficient evidence to allow the jury to determine ²²⁹ whether or not the appellee should be charged with constructive notice of the dangerous condition. Stottlemyer v. Groh, 201 Md. 414, 418-20 , 94 A. 2d 449, 451-52 (1953). (Evidence held insufficient to allow jury to determine whether defendant had constructive notice of a brick frozen to a sidewalk.) The appellant contended that the icy and snowy conditions that persisted for some weeks in the Rockville area, prior to February 17, were common knowledge and were known or should have been known by the City Fathers; that the municipality knowing of the compulsory nature of school attendance, knew or should have known that children and parents of younger children would require means of egress and ingress to schools and should have set up an ice and snow removal priority schedule to assure that sidewalks adjacent to schools, including the one in question, were cleared. Further that the recurrent freezing and thawing process was known or should have been known to the municipality and that this should have been effectively dealt with even if it required the sanding and salting of sidewalks to combat the ice hazard.

The main thrust of this contention of the appellant, which comes to grips with the question of constructive notice only in the most general nature, is answered by McQuillin, supra, § 54.114, pp. 425-27: “Where the cause of injury is snow or ice, the rule that there must be actual or constructive notice of the dangerous condition applies the same as in case of other obstructions or defects, with the same exception that no notice is necessary where the accumulation is caused by acts of municipal officers. But the mere fact that the municipality knows of a heavy fall of snow, or a freeze after a thaw, does not ordinarily include notice of particular danger at any point. In such case it seems there must be actual or constructive notice of the particular defect or obstruction.” (Emphasis supplied.) The law would also appear to require a showing that the condition at the place of the accident was. more perilous than the general condition of sidewalks throughout the municipality and ²³⁰ that the particular situation had prevailed for such a period of time that the city should have known about it and failed to take steps to remedy it. Clark v. District of Columbia, 3 Mackey 79 , 88-89 (D. C. Supreme Court 1884).

In Smith v. District of Columbia, 189 Fed. 2d 671 (D. C. Cir. 1951) the court in dealing with a fall which occurred when the plaintiff slipped on ice stepping from a crosswalk onto a pavement, said at p. 674: “Snow and ice present a peculiar problem, in that they may be dangerous in their natural, normal state and over many, or even all, parts of the entire city. A municipality cannot be held liable for that which is not its fault. So it cannot be held liable for injuries due to snow or ice as or just after the snow has fallen or the ice formed and when the city has had no opportunity to correct dangerous conditions thus created. And it cannot be liable for that which is beyond its power to correct.

So, absent a defect in the street itself, it cannot be held liable for injuries due to the mere slipperiness of snow or ice in its natural state, because it cannot cure such slipperiness on every bit of sidewalk and street in a large city. That was pointed out in the Clark case, supra. “But, where snow or ice has remained on the streets or sidewalks for a period of time and in certain places has been pushed or trampled or otherwise formed into an obstruction or a danger, apart from its original natural dangerous state and in an unusual shape or size, it is not different from any other obstruction or danger. If the municipality has actual notice of the danger, or if the danger is so notorious or so long-continued that the municipal authorities are charged with constructive notice of it, the municipality is liable for injuries resulting from it. In the Clark case, supra, the court said, with reference to snow and ice, * * the District is to be held to liability when, on notice of the dangerous condition of any particular place, it neglects to remedy it.' " (Emphasis supplied.) ²³¹ Also the Court of Appeals of New York recognizing that “In this variable winter climate of ours, falls of snow, followed by-rain or by thawing, and then by freezing, and so alternating from day to day, are common.” Dupont v. Village of Port Chester, 97 N. E. 735, 737 (1912) (quoting from Brennan v. City of New York, 114 N. Y. Supp. 578, 580 (App. Div. 1909); restated the law of that state in Williams v. City of New York, 108 N. E. 448, 449 (1915), in this