Ethel Stanturf v. Betty J. Glidewell d/b/a David's Pie Shop

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CA 00-189

December 6, 2000

ETHEL STANTURF

APPELLANT APPEAL FROM SEBASTIAN COUNTY

CIRCUIT COURT

VS.

HONORABLE JAMES R. MARSCHEWSKI

CIRCUIT JUDGE

BETTY J. GLIDEWELL, d/b/a

DAVID'S PIE SHOP AFFIRMED

APPELLEE

This is an appeal from an order of summary judgment. Appellant, Ethel Stanturf, argues that the trial court erred in finding that there were no material issues of fact in dispute regarding her claim of negligence against appellee, Betty Glidewell, and in concluding that appellee was entitled to judgment as a matter of law. We find no error and affirm.

On the afternoon of August 11, 1997, appellant was walking home with friends when she tripped in a hole that was concealed by grass on the sidewalk in front of appellee's business in Fort Smith. Appellant was injured in the fall, and she brought thissuit contending that she was a business or public invitee and that appellee was negligent in failing to inspect and maintain the sidewalk, and in failing to warn her of the dangerous condition presented by the hole. Appellee countered that she was under no duty to maintain the sidewalk in a safe condition, and she moved for summary judgment on that basis. The trial court agreed with appellee's position and granted judgment in her favor.

Summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Mashburn v. Meeker Sharkey Financial Group, 339 Ark. 411, 5 S.W.3d 469 (1999). The moving party bears the burden of sustaining the motion, and the proof submitted is viewed in the light most favorable to the party resisting the motion. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). In reviewing cases where summary judgment is granted, we need only decide whether the trial court's grant of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Srebalus v. Rose Care, Inc., 69 Ark. App. 142, 10 S.W.3d 112 (2000).

The law of negligence requires as an essential element that the plaintiff must show that a duty of care was owed. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994). The issue of whethera duty exists is always a question of law that is not to be decided by the trier of fact. Hall v. Rental Management, Inc., 323 Ark. 143, 913 S.W.2d 293 (1996). If no duty of care is owed, summary judgment is appropriate. Holloway v. Stuttgart Reg'l Med. Ctr., 62 Ark. App. 140, 970 S.W.2d 301 (1998).

Appellant contends that she was owed a duty of care based on her alleged status as a business or public invitee and because there is a statute and city ordinance that required appellee to maintain the sidewalk. She also argues that appellee is liable because she had trimmed the grass in the past. We cannot agree.

In Epps v. Remmel, 237 Ark. 391, 373 S.W.2d 141 (1963), the appellant fell after stepping into a hole in the sidewalk in front of the appellee's place of business. The appellant argued that appellee was liable for her injuries because there was a city ordinance that required landowners to repair sidewalks in front of the properties. The supreme court disagreed, adopting the rule that such ordinances create a duty enforceable only by the municipality but do not subject individual landowners to liability for bodily harm caused to a wayfarer by the owners' violation of the ordinances.

In Epps, the court cited with approval C.P. Jhong, Annotation, Sidewalk - Abutting Owner - Liability, 88 A.L.R. 2d 331. The annotation does mention a caveat to this rule. An abutting landowner may be held liable if the ordinance contains an expressprovision creating personal liability. Id. at 338. In the case at bar, appellant refers us to Ark. Code Ann. § 14-54-105 (Repl. 1999). This statute, however, merely grants certain cities the power to require landowners to maintain sidewalks alongside their property. We have not been provided the text of any ordinance the City of Fort Smith may have enacted, and we do not take judicial notice of city ordinances. Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987). On this record we cannot conclude that appellee owed a duty to maintain the sidewalk based on a city ordinance.

As for appellant's argument that a disputed question of fact remains as to whether she is an invitee, the generally-recognized common-law rule is that the owner of property abutting a public sidewalk does not owe to the public, including invitees or business invitees, a duty to keep the sidewalk in a safe condition. 88 A.L.R. 2d at 337-38. Regardless of appellant's status, appellee is under no duty to maintain the sidewalk simply by virtue of her ownership of abutting property.

Nor can we agree with appellant's contention that appellee is rendered liable because she once trimmed grass growing on the sidewalk. It is true that a landowner may be held liable if the owner has affirmatively done something to a sidewalk that creates a dangerous condition. See Arkansas Fuel Oil Co. v. Downs, 205 Ark. 281, 168 S.W.2d 419 (1943); Lion Oil Refining Co. v. Boyd, 194Ark. 427, 107 S.W.2d 530 (1937). However, we do not consider the mowing of grass as such an affirmative act. On the contrary, the fact that one sometimes voluntarily mows the grass on a public right of way does not obligate that person to maintain the roadway in a safe condition, nor does it obligate that person to continue his voluntary work. 65th Center, Inc. v. Copeland, 308 Ark. 456, 825 S.W.2d 574 (1992).

Because appellant has failed to establish that appellee owed her a duty to maintain the sidewalk in a safe condition, we affirm the trial court's grant of summary judgment.

Affirmed.

Bird and Stroud, JJ., agree.