Opinion
C.A. No. 99C-02-170
Submitted: May 31, 2000
Decided: April 11, 2001
On the Defendant' s Motion for Partial Summary Judgment on the Issue of Strict Liability.
Robert K. Pearce, Esquire, TRUSKOWSKI, KIPP, KELLEHER PEARCE, P.A., Attorney for the Defendants.
Stephen F. Dryden, Esquire, ROBINSON GRAYSON P.A., Attorney for the Plaintiff.
OPINION AND ORDER STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
On May 25, 1999, the Court, over objection of the Defendants, allowed the Plaintiff to amend her complaint to allege a claim that the Defendants were responsible for the injuries she suffered because they violated 1 Wilm. C. § 42-42. That provision, she alleges, imposed a specific duty upon the Defendants to maintain the sidewalk abutting their property free from "obstructions and defective conditions". The failure to do so constitutes a nuisance per se making the Defendants strictly liable for any injuries that result.
The Defendants argue that strict liability does not apply to a cause of action based upon § 42-42. Rather, they contend that the plaintiff in any such litigation should have to establish that not only was there a violation of that statute, but that it was done negligently and therefore constituted negligence per se. It was on that basis that the Defendants moved for partial summary judgment on the issue of strict liability.
The Defendants had earlier filed a motion for summary judgment, challenging, among other things, the constitutionality of § 42-42. In the course of addressing that motion, the court directed the parties to submit further legal argument on this issue given the contrasting views of the parties.
In support of their motion, the Defendants have put forth several arguments. First, they contend that a violation of § 42-42 should not be equated with "nuisance per se" simply because the word "nuisance" is used in the statute and, that if the Wilmington City Council had intended to so impose strict liability, it would have specifically stated as much in the statute. They also argue that because § 42-42 conflicts with the Premises Guest Statute, 25 Del. C. § 1501, it is invalid. Lastly, because § 42-42 does not set forth a specific standard of conduct, it can not be used as a basis to impose liability upon the Defendants. The Plaintiff has opposed that motion, arguing that the doctrine of nuisance per se is applicable based upon settled law in this state and that it is otherwise a valid exercise of legislative authority.
On March 18, 2001, in an unreported telephone conference, the Court indicated that the Plaintiff' s position on this issue was correct. On March 19, 2001, the trial of this action was scheduled to begin. This view was reiterated on the record at that time. The parties then agreed that the case should be continued so that the Defendants could make application to institute an interlocutory appeal and/or certify this Court's interpretation of § 42-42 to the Delaware Supreme Court. That which follows sets forth the reasoning underlying the aforementioned decision, including the definition of nuisance per se, the applicability of strict liability and the existence of any defenses thereto.
DISCUSSION
Nuisance per Se .
The courts have historically divided nuisance into two categories, nuisance per se and nuisance per accidens. Nuisance per se is defined as "situations in which the substance of the wrong, which does not involve negligence, exposes another to actual or probable injury." Artesian Water Co. v. Gov't of New Castle County, Del. Ch., C.A. No. 5106, Hartnett, V.C. (August 4, 1983) (Mem. Op. at 14); see also 66 C.J.S. Nuisances § 3 (1998). It has also been defined as activities, occupations, or structures that are dangerous at all times and under all circumstances, regardless of location. Harrison v. Indian Auto Shredders, U.S. Ct of App. 7th Cir., 528 F.2d 1107, 1121-1122 (1976); Miller v. Chudahy Co., D. Kan., 592 F. Supp. 976, 1004 (1984); see also 58 Am. Jur. 2d Nuisances § 19 (1989); and 66 C.J.S. Nuisances § 5 (1998). Nuisance per accidens, on the other hand is "a lawful act or use of property which becomes a nuisance because of its circumstance or its location or its manner." Fenton v. Longwill, Del. Ch., C. A. No. 5836, Allen, C. (Nov. 5, 1987) (Mem. Op. at 4); see also 58 Am. Jur. 2d Nuisances § 17 (1989); and 66 C.J.S. Nuisances § 5 (1998).
The courts have also classified nuisance into absolute nuisance and qualified nuisance. However, these terms are generally held to be synonymous with nuisance per se and nuisance per accidens respectively. Hylton v. Shaffer's Market, Inc., Del. Super., 343 A.2d 627, 629 (1975); and Krauth v. Geller, N.J. Super., 149 A.2d 271, 276 (1959).
The question of whether the nuisance is a nuisance per accidens or a nuisance per se, i.e., whether the condition is inherently dangerous at all times, is generally a question for the jury. Suddeth v. Knight, S.C. Ct. App., 314 S.E.2d 11, 15 (1984); see also 58 Am. Jur. 2d Nuisances § 19 (1989); and 66 C.J.S. Nuisances § 118 (1998). However, where the legislature has declared a particular use of property as constituting a nuisance, generally nuisance per se is conclusively established. People ex. rel. Dep't. of Pub. Works v. Adco Advertisers, Cal. Ct. App. 3rd Dist., 110 Cal.Rptr. 849, 853 (1973); see also 66 C.J.S. Nuisances § 63 (1998). In such cases, a jury determination of whether the nuisance is per se or per accidens is inappropriate. A finding of nuisance per se is established upon the jury finding that the particular condition legislated against is present. Where the object to be accomplished by the statute or ordinance is conducive to the public good, the court should defer to the legislature's determination that the condition is a nuisance. Ghaster Properties v. Preston, Ohio Ct. Cinmn. Pleas, 184 N.E.2d 552, 559 (1962), rev'd on other grounds, 200 N.E.2d 328 (1964). That declaration is entitled to great weight and the courts will generally not go behind such a determination. 58 Am. Jur. 2d Nuisance § 64 (1989).
In extreme cases, however, the courts may disregard the legislature's determination of nuisance and make its own independent judicial determination. For example, in Ghaster the Court held that a legislative prohibition against roadside billboards was arbitrary and unreasonable because it bore no real and substantial relationship to the public safety. Ghaster at 559-560.
In Delaware:
[A]bsolute nuisance, or nuisance per se, is generally said to exist in three types of cases. First, when there is a violation of a safety statute; second, when the defendant is engaged in an abnormal or hazardous activity; and third, when the defendant makes an intentional interference for his own purposes which is clearly unreasonable in its surroundings.Hylton at 629. The holding in this case clearly recognizes that negligence per se may be established in Delaware through legislative enactment of a statute or ordinance, and not merely where the defendant is engaged in an ultra-hazardous activity. The statute at issue in this case, § 42-42 of the Wilmington City Code states in relevant part:
(a) Every sidewalk or footway between the curb stone and the building line, and every curb, along any of the public streets in the city, in front of lots whereon is erected any dwelling house, office, place of business, railing, fence, stone or brick wall, or permanent structure of any kind, or in front of such vacant lots as shall have been paved, shall at all times be kept in proper condition and free from obstruction and defective conditions. Any side-walk, footway or curb, which shall become uneven or in which there shall be holes caused by the wear or removal of the material of which it is composed or in which there shall be depressions or in which there shall be loose bricks or loose material or which shall become broken or thrown into ridges or forced out of normal position by trees, tree roots, frost or other means; or which shall be unfit for use as a footway or sidewalk or curb by reason of being covered with weeds, mud, dirt, filth or other objectionable matter or which shall be out of proper condition from any cause, natural or artificial, shall be deemed to be a nuisance. (emphasis added).
(b) The owner of any property or ground abutting on such defective sidewalk or footway, or curb, or the authorized agent of such owner, shall be solely responsible for any damage that may result to persons or property by reason of any hole, excavation or obstruction in or upon such footways, or from any defective condition of such sidewalk, footway or curb.
It is readily apparent, given the language quoted above, that the Wilmington City Council has unequivocally determined that maintaining one's sidewalk in certain states of disrepair constitutes a nuisance. A careful reading of § 42-42 further reveals that the purpose of the ordinance is to provide for the public interest and safety. This interest is evidenced by the language in subsection (a) which specifically states what the abutting landowner is required to do. The logical implication of this language is that the purpose of the ordinance is to provide an unobstructed, and safely navigable thoroughfare for foot traffic. In addition, the preamble to this ordinance specifically states the purpose as to protect the public health and safety. 1 Wilm. C. Ch. 45 It also plainly states that the amendment was made in response to two Delaware Superior Court decisions whereby pedestrians injured on sidewalks were left with no remedy because the then existing ordinance required notice to the abutting landowners before a duty to repair arose. See Yacucci v. Tenhoppen, Del. Super., 550 A.2d 327 (1988); and Ptomey v. Rapo, Del. Super., C.A. No. 83C-DE-114, Balick, J. (Jan. 1, 1989) (Letter Op.). As such, a jury finding of any violation of § 42-42 must be conclusively deemed nuisance per se.
The preamble to Chapter 45 was included in the amendment of that chapter on March 8, 1989. Effective July 1, 1993, the Wilmington City Code was amended further and Chapter 45 became, and remains, Chapter 42.
Strict Liability.
A finding of a nuisance in general, does not necessarily result in a finding of liability. Where it is determined that the nuisance is nuisance per accidens, there must be a basis for the liability. Such basis include, an unreasonable and intentional invasion of the plaintiff's interest, the defendant's negligent or reckless conduct, or an ultra hazardous or abnormally dangerous condition or activity. Artesian at 14; see also 58 Am. Jur. 2d Nuisance § 69 (1989). However, when nuisance per se is established, strict liability is imposed by law. Artesian at 20; and State ex. rel. R.T.G. Inc. v. State, Ohio Ct of Appeals, No. 98AP-1015, Tyack, J. (March 8, 2001); see also 58 Am. Jur. 2d Nuisance § 23 (1989); and 66 C.J.S. Nuisances § 3 (1998). In the present case, a violation of § 42-42, and thus a finding of nuisance per se, automatically results in the imposition of strict liability on the defendant for any resulting damage to the plaintiff.
The Defendants appear to argue that strict liability does not apply to § 42-42 because the statute does not contain a specific standard of conduct and that nuisance per se is the equivalent of negligence per se. The cases cited in support of these arguments, as well as the arguments themselves, are not persuasive. Some discussion, however, is warranted.
See Marshalewski v. Sitko, Del. Super., C.A. No. 89C-JN-38, Babiarz, J. (Feb. 12, 1991) (Mem. Op.); Schreppler v. Middletown, Del. Super., 154 A.2d 678 (1959); and Massey v. Worth, Del. Super., 197 A. 673 (1938), cited by the Defendants at p. 11 of their opening brief in support of the proposition that in the absence of statutory authority, abutting landowners are not liable to pedestrians injured as a result of sidewalk defects. Section 42-42, by its very terms, negates the holdings of these cases. In addition, cases from other jurisdictions involving allegations of statutorily based nuisance, concern statutes not as specific or setting forth as clear an expression of legislative intent as the mandate contained in § 42-42. See Taylor v. City of Cincinnati, Ohio Supr., 55 N.E. 724, 727 (1944); and Kelly v. Cleveland Elec. Illuminating Co., Ohio Ct. App., No. 59044, Harper, J. (Dec. 12, 1991).
For example, in support of the argument that nuisance per se is the equivalent of negligence per se, the Defendants cite D'Amato v. Czaikowski, Del. Super., No. 95C-01-183, Quillen, J. (Oct. 26, 1995 (Mem. Op.). That case concerned an action based upon the alleged violation of the building code of the City of Wilmington. The issue presented to the Court was whether a violation of the particular provision of the building code was negligent or negligent per se or as a matter of law. There was no reference to or discussion of nuisance in the aforementioned sections of that code or anywhere in the opinion. And, while the Court did opine that a violation of a safety statute was considered negligence per se, that holding was based on cases involving motor vehicle accident litigation and not the law of nuisance.
Sammons v. Ridgeway, Del. Supr., 293 A.2d 547, 549 (1972); Nance v. Rees, Del. Super., 161 A.2d 795, 797 (1960); and Wealth v. Renai, Del. Super., 114 A.2d 809, 810-811 (1995).
Similarly, Duphily v. Del. Elec. Coop., Inc., Del. Supr., 662 A.2d 821, 828 (1995); Wright v. Moffitt, Del. Supr., 437 A.2d 554, 557 (1981); and Hand v. Davis, Del. Super., C.A. No. 87C-0C-6, Ridgely, J. (June 8, 1990) (Mem. Op.) do not concern allegations that nuisances or the law of nuisance were involved.
In relying on Patton v. Simone, Del. Super., C.A. Nos. 90C-JA-29, 90C-JL-219, Herlihy, J. (Dec. 14, 1992) (Mem. Op.) the Defendants assert that the case held "that there was no negligence per se for the violation of a safety statute regarding elevator operation because the defendant's conduct related to servicing the elevator, not operating it". Defs.' Opening Br. at n. 14. (emphasis added). That is an incorrect reading of the Court's decision.
More specifically, one of the claims made by the plaintiff in Patton was that the defendants created a common law nuisance and/or a nuisance per se in continuing to operate a particular elevator. Citing Hylton, the Court first described the three instances in this state where a nuisance per se can exist, including the situation where there is a violation of a safety statute. It then held that since the cause of action arose out of the maintenance of the elevator, and since the safety statute in question concerned the "condition" of elevator, there was no violation of the statute, and therefore, no nuisance per se. Id. at 9. No reference was made to negligence per se. In short, the holding was consistent with Artesian and its progeny.
The final argument to be addressed is the contention by the Defendants that § 42-42 does not contain a specific standard of conduct. As a consequence, there can be no tort liability of any kind. See: Defs.' Opening Br. at 9. This argument is simply without support as a matter of fact and law. The statutory language is abundantly clear in terms of the obligations of the abutting landowner and the hazards to be avoided and/or eliminated. Nor have the Defendants been able to support their position with any legal authority. As a consequence, it is not persuasive.
Contributory Negligence and Assumption of Risk.
Of primary concern to the parties, albeit for different reasons, is the question of whether or to what extent the Plaintiff's conduct is a factor which can influence her right to recover for a violation of § 42-42. Stated differently, to what extent do the defenses of contributory negligence and assumption of risk apply where strict liability governs the prosecution of a cause of action such as this. The answer is that neither is available as a defense.
It is well established that a finding of nuisance per se precludes the defense of contributory negligence. Hylton at 629; see also 58 Am. Jur. 2d Nuisances § 450 (1989); and Restatement (Second) of Torts § 840C (1977) . The Delaware courts have never had the opportunity to directly address the issue of whether assumption of risk is available as a defense to nuisance per se. However, there is authority which does provide a basis upon which an answer can be derived.
Modern tort law divides assumption of risk into two categories, primary assumption of risk and secondary assumption of risk. The distinctions have different consequences. Primary assumption of risk is an express consent by the plaintiff accepting the risk, which relieves the defendant of his legal duty to the plaintiff. Fell v. Zimath, Del Super., 575 A.2d 267, 267-268 (1989). Secondary assumption of risk, on the other hand, exists when encountering the risk is disproportional to the advantage which the plaintiff seeks. Id. at 268. Significantly, if the conduct falls into the category of secondary assumption of risk, the defense is subsumed into, and treated the same as the defense of contributory negligence. Koutoufaris v. Dick, Del. Supr., 604 A.2d 390, 397-398 (1992) (citing Bib. Merlonahi, Del. Supr., 252 A.2d 548 (1969)) As a consequence, given the holding in Hylton barring the defense of contributory negligence in an action based upon to nuisance per se, secondary assumption of the risk must likewise be barred as a defense to nuisance per se.
Premises Guest Statute
The Defendants argue that a construction of § 42-42 which holds anyone who violates its provisions strictly liable for the resulting damages, raises a conflict with the purpose and/or intent of the Premises Guest Statutes, 25 Del. C. § 1501. Such conflicts must result in the municipal ordinance yielding to the state statute. That statute reads:
No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises unless such accident was intentional on the part of the owner or occupier or was caused by the willful or wanton disregard of the rights of others.
The legislative intent of this section was to protect a landowner from suits by guests based on simple acts of negligence, just as the motor vehicle owner or operator is protected by the automobile guest statute. See Stratford Apts., Inc. v. Fleming, Del. Supr., 305 A.2d 624 (1973).
Simply put, there is no conflict between the two statutes. Section 42-42 concerns a statute enacted for the safety of the public while the Guest Statute was clearly enacted to protect a private landowner from suit by guests or trespassers in the absence of at least willful or wanton conduct. One may have to traverse a public. sidewalk, but does not have to enter upon private property unless he or she so desires. By no stretch of the imagination are the statutes therefore at odds with one another, a conclusion that the Defendants have failed to refute with legal authority. See Defs.' Opening Br. at 10. The Court must conclude as a result that violations of § 42-42 can be resolved based upon strict liability without conflicting with the Premises Guest Statute.
CONCLUSION
For the foregoing reasons, one who violates 1 Wilm. C. § 42-42 will be held strictly liable for any damages proximately caused by the violation. The statute is clear and unequivocal. There is no conflict with the Premises Guest Statute, and the defense of contributory negligence, including what is known as secondary assumption of the risk, is not available in such actions. Accordingly, the Defendants' motion for partial summary judgment must be denied.
IT IS SO ORDERED