Cooley v. Arizona Public Service Co.

OPINION KLEINSCHMIDT, Judge. Rena Marie Cooley sued Arizona Public Service Co. (APS) to recover for injuries she received when she tripped and fell over a raised area on the sidewalk abutting an APS building in Phoenix. She estimated that where she fell, the sidewalk was raised about % of an inch to one inch. The trial court granted summary judgment in favor of APS, holding that the condition of the sidewalk did not constitute a defect; that to the extent the sidewalk was defective, it was obvious to Cooley who had used the sidewalk for several years; and that APS did not have notice of the condition. We reverse. EXISTENCE OF DEFECT IS A JURY QUESTION If reasonable minds can differ as to whether a sidewalk is defective, the question is one for the jury. City of Phoenix v. Weedon, 71 Ariz. 259, 264, 226 P.2d 157, 160 (1950); Dillow v. City of Yuma, 55 Ariz. 6, 10-11, 97 P.2d 535, 537 (1940). In — 3 — Weedon, the court upheld a jury verdict for the plaintiff based on evidence that a raised area in a sidewalk was Vs inch in height. Thus, in the case before us, the trial judge erred in finding, as a matter of law, that the sidewalk was not defective. WHETHER DEFECT IS OBVIOUS IS A JURY QUESTION The trial judge erred in finding, as a matter of law, that the condition of the sidewalk was so obvious that APS could not be liable for the plaintiffs injury. This, too, is an issue for the jury. See Miller v. George F. Cook Constr. Co., 91 Ariz. 80, 83, 370 P.2d 53, 55 (1962). CONSTRUCTIVE NOTICE OF DEFECT IS A JURY QUESTION Cooley does not contend that APS had actual notice of the raised area, so she must show that it had constructive notice. See Wisener v. State, 123 Ariz. 148, 150, 598 P.2d 511, 513 (1979); City of Phoenix v. Williams, 89 Ariz. 299, 304, 361 P.2d 651, 655 (1961); Matts v. City of Phoenix, 137 Ariz. 116, 118, 669 P.2d 94, 96 (App. 1983). To raise a disputed question of material fact on the issue of constructive notice, Cooley must produce evidence from which it can be inferred that the raised area existed long enough that APS, by the exercise of reasonable diligence, should have known about it. See Weedon, 71 Ariz. at 265, 226 P.2d at 161. In our opinion, the very nature of a defect such as this, which a jury could find is neither transitory nor one that usually arises suddenly, is enough to support an inference that it had been in existence for sufficient time to put APS on notice. Since we find no Arizona cases which are factually similar to this one, we look to decisions from other states. Most closely on point is Bodeman v. Shutto Super Markets, 197 Colo. 393, 593 P.2d 700 (1979). There, the plaintiff was injured when the shopping cart she was pushing overturned on an asphalt ramp leading from the sidewalk in front of a grocery store to a parking lot. The evidence showed that the accident was caused by a hole in the ramp that was four inches wide and two inches deep. The jury found for the plaintiff, but the Colorado Court of Appeals set aside the verdict because the plaintiff had produced no evidence to show how long the hole had been in existence. The Supreme Court of Colorado reversed and reinstated the verdict in favor of the plaintiff. It observed that constructive notice of a dangerous condition need not be proved by direct evidence, and the very nature of the defect can be considered on the question of how long the condition existed. It quoted with approval from the dissent filed in the court of appeals: The character of the defect may affect the legal consequences flowing from it. From the very nature of the defect here, the jury could and did infer that it had existed for a period of time sufficient for the proprietor to become aware of it and repair or warn customers of it. ... Ordinarily, a hole like this one ... does not develop suddenly. This inference is not mere wild speculation but is based on matters within the realm of common human experience and therefore plaintiffs case should have survived a motion for directed verdict. The Colorado Supreme Court then went on to say that this was not a ease in which the transitory nature of the condition gave rise to a grave doubt as to whether the defendant could have discovered it, and the court held that there was an issue of fact as to whether the defendant did have constructive notice. Other cases support the same conclusion. For example, in Parker v. DeWitt County Housing Authority, 57 Ill.App.3d 973, 15 Ill.Dec. 334, 373 N.E.2d 680 (1978), the plaintiff was injured when a hole surrounding a drain in the defendant’s yard caused him to trip and fall. The court, observing that reasonable inferences could be drawn either way, held that whether the defendant had constructive notice of the existence of the hole was a question for the jury. In Hascup v. City and County of Honolulu, 2 Haw.App. 639, 638 P.2d 870 (1982), — 4 — the plaintiff caught her heel in a hole in a sidewalk, causing her to fall. She introduced two pictures of the hole into evidence. The report of the case mentions nothing about what those pictures showed as to what the hole looked like. The court held that the city was not entitled to a directed verdict, saying that the length of time a condition must exist before it can be inferred that the defendant had constructive notice of it is ordinarily a question for the jury. At least one case we are aware of imposes an even more relaxed standard on the plaintiff. In Mims v. Jack’s Restaurant, 565 So.2d 609 (Ala.1990), the plaintiff tripped on a metal threshold that was raised above the floor about lk inch. An inspection of the threshold following the accident showed that several screws securing the threshold were missing. The Supreme Court of Alabama, without going into detail, held that once the plaintiff has proven a defect, the question of actual or constructive notice is for the jury, regardless of whether the plaintiff has shown that the defendant had or should have had notice of the defect at the time of the accident. The possible inference of constructive notice that arises from the nature of the defect in this case is made even stronger by the plaintiffs testimony that she had walked to First Interstate Bank once a week for approximately seven years, although she did not necessarily walk on the sidewalk where she fell. She did state, however, that prior to her fall she had noticed that the sidewalks were “all pretty bad over there.” EFFECT OF THE CITY CODE Because this case must be tried, we will address the plaintiffs argument that the Phoenix City Code imposes liability on APS regardless of whether it had actual or constructive notice of the condition of the sidewalk. The argument requires a consideration of the Phoenix City Code, Streets and Sidewalks, Article IV, Sections 31-54, 31-55, and 31-56. Those provide: Section 31-54: Duties of abutting property owners. It shall be 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. Section 31-55: Liability of abutting property owners for defective sidewalk. Any owner of any lot or parcel of land abutting on any sidewalk of the City who fails to keep the same in repair, shall be liable for any damage on account of any injury that may be occasioned by reason of the defective condition or want of repair of any sidewalk within the City. Section 31-56: Procedure for repairing sidewalks generally. Whenever any sidewalk in the City shall become defective, the City Engineer shall notify the owner of the abutting property of such defective condition and shall notify the owner to immediately repair such sidewalk and unless immediate steps are taken by the owner to repair the sidewalk, the City shall proceed to repair the sidewalk and tax the cost of such repair to the abutting property owner and make such cost a lien upon the property abutting on the sidewalk ... The plaintiff contends that since these provisions say nothing about the owner’s liability being contingent on notice of the defect, she need not prove that APS had either actual or constructive notice to recover. We disagree. The code is intended to impose the primary duty on landowners to keep the sidewalks abutting their property in repair and to afford the city a means of protecting itself against liability by undertaking repairs and charging them to the owner when the owner refuses to do so. We do not believe that the code was intended to impose absolute liability on landowners, thereby negating the law of negligence as it is enunciated in such cases as Matts v. City of Phoenix, Wisener v. State and City of Phoenix v. Williams. The code does not clearly say that notice is not required, and statutory enactments should be construed as consistent with the common law if possible. Farnsworth v. — 5 — Hubbard, 78 Ariz. 160, 168, 277 P.2d 252, 258 (1954). The judgment of the trial court is reversed and this case is remanded for further proceedings. CLABORNE, J., concurs.