Summary
stating that while a property owner has no common law duty to repair a sidewalk adjacent to his property, "such a duty may be imposed by statute or city ordinance"
Summary of this case from Quiroz v. ALCOA Inc.Opinion
No. 1 CA-CV 96-0456
Opinion Filed December 18, 1997
Appeal from the Superior Court of Maricopa County. Cause No. CV 95-17268.
The Honorable Anna M. Baca, Judge; AFFIRMED.
Glynn W. Gilcrease, Jr. Attorney for Plaintiffs-Appellants, Tempe.
Jennings, Strouss Salmon, P.L.C. by James M. Ackerman, and Brad A. Denton, Attorneys for Defendants-Appellees, Phoenix.
The Phoenix City Code imposes a duty upon the owner or lessee of land abutting a sidewalk to keep the sidewalk in repair. Does this duty extend to an unimproved sidewalk right-of-way where no sidewalk has been constructed? We hold that it does not.
I.
While on duty as uniformed bicycle officers with the Phoenix Police Department, Plaintiff Joe Bill Thomas and his partner recognized a drug suspect and pursued him. During the pursuit, Thomas steered his bicycle onto a dirt right-of-way abutting a lot that Defendants own and occupy. Thomas continued eastward on the right-of-way until the front tire of his bicycle struck the edge of a concrete sidewalk abutting a neighboring lot owned by one James Burger. The sidewalk edge was located completely upon the right-of-way abutting the Burger property, but only three inches from Defendants' property line. The impact propelled Thomas from his bicycle, and he landed on his head.
Plaintiffs filed a personal injury complaint, Defendants moved for summary judgment, and the trial court granted their motion, ruling that "Defendant[s] had no legal duty to correct or warn of a defect on their neighbor's land." Plaintiffs then filed a motion for a new trial, the trial court denied their motion, and Plaintiffs filed this timely appeal. For reasons that follow, we affirm.
II.
The trial court defined the dangerous condition that led to Thomas's injuries as the abruptly elevated sidewalk edge — a condition that abutted only the neighboring property and not that of Defendants. Plaintiffs argue that the trial court too narrowly defined the dangerous condition. The danger, they argue, arose not merely from the paved sidewalk abutting the neighbor's property, but also from the immediately contiguous, unlighted, unpaved right-of-way abutting Defendants' property, and from the absence of any transition between the two. These factors in combination, Plaintiffs argue, caused the injury; neither could have done so on its own.
We need not decide this definitional question in order to resolve this appeal. It suffices to assume for the purpose of decision that the condition of the right-of-way abutting Defendant's property contributed to the danger to bypassers such as Plaintiff. This assumption permits us to turn to the question whether Defendants had any duty of reasonable care toward bypassers using the right-of-way. See Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985). This question is one of law. Id. at 354, 706 P.2d at 366.
Generally, "a property owner is under no common-law duty to use due care to keep safe the sidewalk abutting his premises." Cummings v. Henninger, 28 Ariz. 207, 211, 236 P. 701, 702 (1925); Restatement (Second) of Torts § 349 illus. 1, 2. However, such a duty may be imposed by statute or city ordinance. Plaintiffs claim that such a duty is imposed in the City of Phoenix under the Phoenix City Code, which establishes the "duty of the owner or the lessee of any lot or parcel abutting upon any sidewalk now or hereafter constructed in the City to keep and maintain such sidewalk in repair." Phoenix, Ariz., City Code, Streets and Sidewalks, art. IV, § 31-54 (Supp. 1990). Defendants respond that the unimproved right-of-way abutting their property is not a sidewalk within the meaning of § 31-54.
The term "sidewalk" is expansively defined in the Uniform Act Regulating Traffic on Highways as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines . . . ." Ariz. Rev. Stat. Ann. § 28-602(21) (Supp. 1997). A similar definition is provided in article II of the Phoenix City Code, which concerns "Street and Sidewalk Vending." See Phoenix, Ariz., City Code, Streets and Sidewalks, art. II, § 31-22 (Supp. 1996). This expansive definition, if applicable, includes the unimproved right-of-way abutting Defendants' property.
The ordinance invoked by Plaintiffs, however, does not impose a duty of repair upon a landowner or possessor abutting any "sidewalk," broadly defined. To the contrary, as Defendants pointed out in oral argument, the duty of repair set forth in § 31-54 extends only to "the owner or the lessee of any lot or parcel abutting upon any sidewalk now or hereafter constructed." (emphasis added). A duty limited to possessors abutting "constructed" sidewalks does not extend to possessors abutting unimproved right-of-ways. Cf. Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982) (A statutory "expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed."). For such unimproved right-of-ways, the common law remains in effect. See Carrow Co. v. Lusby, 167 Ariz. 18, 21, 804 P.2d 747, 750 (1990) ("Statutes are not to be construed as effecting any change in the common law beyond that which is clearly indicated.").
Because Defendants did not owe Thomas a duty to repair or warn of the condition of the unimproved right-of-way abutting their property, we affirm the trial court's grant of Defendants' motion for summary judgment and its denial of Plaintiffs' motion for a new trial.
GERBER and THOMPSON, JJ., concur.