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Lash v. J. J. Newberry Co.

decided: January 10, 1975.

RALPH LASH AND BETTY A. LASH, PLAINTIFFS-APPELLEES,
v.
J. J. NEWBERRY COMPANY, DEFENDANT-APPELLANT



Appeal from a judgment entered by the United States District Court for the District of Vermont, James S. Holden, C.J., following a jury verdict for plaintiffs in a diversity case.

Medina, Friendly and Gurfein, Circuit Judges.

Author: Gurfein

GURFEIN, Circuit Judge:

Appellant J.J. Newberry Co. appeals from a jury verdict awarding damages to appellees Betty and Ralph Lash for injuries sustained when Mrs. Lash slipped and fell on ice on the public sidewalk abutting appellant's property in Barre, Vermont. Since appellees are citizens of Vermont and appellant is a citizen of Delaware, the case was properly within the diversity jurisdiction of the District Court under 28 U.S.C. ยง 1332. Vermont law governs the questions on appeal.

Appellant maintains a store on one of the main streets of Barre. A broad sidewalk slopes gently down from appellant's store; it is owned by appellant to a point halfway between the store and the curb, and by the City between that point and the curb. Several years ago, the sidewalk was repaved by the City, with costs shared equally between the City and appellant.

The public portion of the sidewalk has been maintained by the City alone, but both owners have cooperated in the past to keep the entire sidewalk unobstructed in bad weather. Thus, by custom, when it snowed, the City would plow both portions of the sidewalk and sometimes salt it. Appellant would shovel the entire sidewalk, piling snow into a low "dike" near the curb, and salt it when the City failed to do so. Sometimes, salt applied by either the City or appellant would melt the snow on the sidewalk, so that water would run down from the portion of the sidewalk owned by appellant onto that portion owned by the City. The evidence showed that appellant was aware that depressions existed in the public portion of the sidewalk in which water would occasionally collect and freeze.

Two days before Mrs. Lash's fall, it had rained and then become very cold. Snow began to fall on the evening preceding the accident and continued into the early morning hours. Later that morning, the City plowed the sidewalk. Still later, around 8:00 A.M., appellant's store manager arrived at work and shoveled off the excess snow left behind by the snowplow. No salt was applied. Sometime thereafter, there may have been a rather light snow fall, but there was a conflict of testimony on this.

In the early afternoon, appellee Mrs. Lash crossed the street in the middle of the block, arriving at a point nearly opposite the entrance to appellant's store. Piled on the curb was a "dike" of snow about eight inches high and eight wide. Stepping over this low impediment, appellee placed her foot on what appeared to be snow but was in fact a patch of ice covered by a thin layer of snow. She slipped, fell and sustained the injuries complained of in this case. Her fall occurred on the municipal portion of the sidewalk.

At trial, the district judge charged the jury that they could find appellant liable if they determined that appellant had breached its duty of care owed as "a reasonably prudent man" to Mrs. Lash and that the breach of care proximately caused her injury. He then charged more specifically that in determining whether appellant had exercised reasonable care, the jury could consider appellant's conduct under two alternative theories of negligence: 1) breach of an abutter's duty to keep his property from becoming a source of danger to users of the public way, or 2) violation of a local ordinance forbidding private property owners from depositing snow or ice on public sidewalks, which violation would be prima facie evidence of negligence. After the charge on negligence was limited to these two theories, there was no further charge that the jury could find the defendant liable if its agent had piled snow over an ice pocket already formed in a manner that the jury could find to have been negligent. This alternative theory was simply never put to the jury, and we must assume that their verdict rested on either of the two theories on which they were instructed. We hold that the judge's charge contained reversible error and we remand for a new trial.

In charging the jury on the first theory of liability, the court stated that one whose land abuts on a public way owes a duty to users of that way to keep his property from becoming a source of danger to them. Specifically, an abutter must "keep it from becoming a source of danger through any defect, either in the construction, use, or maintenance of his rented property, so far as the exercise of the care of a prudent person can guard against such danger." The court charged that an abutter must guard against the possibility that water running off his property could cause danger to the public. An abutter is bound to acknowledge the severity of Vermont winters and thus to realize that water running off his property might pool in sidewalk depressions, freeze, and thereby endanger the safety of passers-by.

Counsel for appellant objected to this charge, on the ground that there was no evidence to indicate that the ice upon which Mrs. Lash had fallen resulted from a discharge of water from appellant's property. In his objection, counsel specifically called to the attention of the court that there was no evidence that the piece of ice on which the appellee claimed to have fallen was the result of "improper discharge" of water from the appellant's property. The court then recharged the jury, acknowledging the lack of evidence as to discharge of water, but allowing the jury "to determine whether the evidence permits the inference that the snow melted or ran off from the slope from the entranceway to the Newbury [sic] Company and collected in puddles on the water [sic]." He concluded this additional charge by saying, "It is for you to say if there is water which collected in pools and if so, where it came from." By posing the question, the court was telling the jury that if they found the "pools" were formed by water that "came from" the appellant's sidewalk, they could find liability.

Still later, in response to a question from the jury, the court once again described to them the nature of the abutter's duty: "He must exercise due care to prevent snow either in an actual state of snow or as melted snow, from running off store property and collecting on the public way, in such a manner as to cause danger to public users of the sidewalk." Once again, appellant's counsel objected to the charge.

The court's theory of negligence as expressed in his charge was apparently based on the leading Vermont case, Murray v. Nelson, 97 Vt. 101, 122 A. 519 (1923). In Murray, defendant maintained a water pipe which, being improperly insulated, burst and discharged water onto a public sidewalk. Plaintiff slipped on the resulting ice patch and was allowed to recover from defendant. The Murray court used the broad language used by the district court below, stating that an abutter must maintain his property so that it does not become a source of danger to users of the public way. But it added "if he artificially collects upon his own premises a substance which, from its nature, is liable to escape and do damage to others, he must use due care to restrain it, and is liable for damages resulting from his failure to do so." 122 A. at 520-21.

Appellant contends that the crucial word in that passage is "artificially" and that the district court erred in failing to distinguish a case in which the dangerous condition is created by "artificial" use of the land, causing discharge onto a public way, from a case in which the flow of water is the result of a natural configuration of the property. Although we have been able to find no Vermont case denying an abutter's liability on the ground that danger on adjoining public land was created by a "natural" condition on the abutter's land, we believe that a Vermont court, reasoning from ...


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