Nyers v. Gruber

Concurring Opinion

Sullivan, P. J.

I concur but solely upon the basis that an abutting landowner’s negligence, if any, for failure to remove snow and ice is not created by violation of a general and all-inclusive snow removal ordinance but, rather, by reason of an owner’s affirmative act in creating a more dangerous condition (See Boss-Harrison Hotel Co. v. Barnard [1971], 148 Ind. App. 406 , 266 N. E. 2d 810 ) or perhaps even by a common law responsibility for injuries sustained by reason of un unnatural accumulation of snow or ice. Kalicki v. Beacon Bowl, Inc. (1968), 143 Ind. App. 132 , 238 N. E. 2d 673 , strongly implies the existence of liability of the latter origin. See also Smith v. J. C. Penney Co. (7th Cir. 1958), 261 F. 2d 218 .

To be sure, the city is required to keep its public ways clear of unnatural accumulations of snow or ice. City of So. Bend et al. v. Fink, Admx., etc. (1966), 139 Ind. App. 282 , 219 N. E. 2d 441 ; Johnson v. City of Evansville (1932), 95 Ind. App. 417 , 180 N. E. 600 . The city’s duty, however, cannot be delegated by way of ordinance so as to impose a theretofore nonexistent liability. See Town of Argos v. Harley (1943), 114 Ind. App. 290 , 49 N. E. 2d 552 ; Wickwire et al. v. The Town of Angola (1892), 4 Ind. App. 253 , 30 N. E. 917 ; Kane v. City of Indianapolis (Cir. D. Ind. 1897), 82 F. 770 . The latter case stated the principle as follows:

“In other words, [the city] cannot transfer to private citizens that responsibility which, for wise purposes of public policy, the law casts upon it in reference to the care and safety of its streets and walks.

*138 “From these principles it results that, as to third parties who have sustained injuries from the dangerous and defective condition of its streets and walks, the responsibility of the city is primary, and it cannot shift from itself this primary responsibility.” 82 F. 770, 773 .

As the Kane case and the case of City of Evansville et al. v. Lehman (1965), 138 Ind. App. 587, at 603 , 210 N. E. 2d 672 , indicate, the principle of non-delegability does not necessarily preclude the existence of liability on the part of an abutting owner as well as on the part of the municipality. Suffice it to say, however, that any such duty should not exceed the scope of the municipality’s obligation to remove unnatural accumulations of snow and ice. Quite clearly, then, an abutting owner’s common law duty concerning removal of snow or ice would not under any circumstances require removal within twenty-four hours of any and all snowfall, no matter how slight, as purportedly required by the ordinance here in question.

With reference to a factor given much emphasis by the primary opinion herein and somewhat contrary to the implication contained in Cowin v. Sears-Roebuck and Co. (1955), 125 Ind. App. 624 , 129 N. E. 2d 131 , I do not see how the presence or absence of a penal provision in the ordinance considered can confer or eliminate the safety factor inherent in such ordinance which exists for the protection and benefit of pedestrians traveling upon the public sidewalks as well as for the benefit of the municipality. In my view, the ordinance is no different in this respect from other statutes or ordinances which serve to protect the safety of the public, the violation of which gives rise to a provable allegation of negligence even though such statutes or ordinances also contain penal sanctions. See Union Traction Co. v. City of Muncie (1921), 80 Ind. App. 260 , 133 N. E. 160 . I see no merit or logic in maintaining this artificial distinction.

Further, appellee has herein asserted that a city is not empowered, unless specifically authorized by act of the General *139 Assembly, to confer private rights or responsibilities as between individuals. Such contention is in fact embodied in the decision and opinion of the trial court and is adopted by the primary opinion herein. See Cowin v. Sears-Roebuck and Co., supra, which relies for this principle solely upon 25 Am. Jur., Highways, § 366. 125 Ind. App. 624 at 628 . It seems to this writer, however, that the logic and persuasiveness of well-reasoned and well-established Indiana case authority, which clearly acknowledges creation of private duties and responsibilities by enactment of municipal ordinances affecting public safety, should be controlling. New York, etc., R. Co. v. Lind (1913), 180 Ind. 38 , 102 N. E. 449 ; Union Traction Co. v. City of Muncie, supra.

I therefore concur in the result only.

Buchanan, J., concurs.

Note. — Reported in 275 N. E. 2d 863 .