SWISHER v. BRIGGS, 711 N.W.2d 733 (Iowa App. 2006)

No. 5-878 / 05-0705Court of Appeals of Iowa.
Filed January 19, 2006

Appeal from the Iowa District Court for Page County, Gordon C. Abel, Judge.

Plaintiff appeals the district court’s entry of summary judgment in favor of the defendants on her negligence claim.AFFIRMED.

Eric C. Hansen, Council Bluffs, for appellant.

Gregory G. Barntsen and Marvin O. Kieckhafer of Smith Peterson Law Firm, L.L.P., Council Bluffs, for appellee.

Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.

VAITHESWARAN, J.

Anna Swisher was walking her dog in the City of Clarinda when she tripped on the sidewalk in front of a property owned by Virgil and Shirley Briggs. Swisher sued the Briggs, alleging, in part, that they were negligent in maintaining the sidewalk. The Briggs moved for summary judgment. The district court granted the motion, noting that any maintenance obligation imposed by statute or ordinance was between the landowner and the city and did not run in favor of the traveling public. This appeal followed.

Under our well-established summary judgment standards,[1]
the district court was correct in concluding that Swisher “failed to establish a legal basis to impose liability on an abutting owner for failure to maintain and repair the sidewalk.”

Iowa Code section 364.12(2) (2005) requires a city to “keep all public . . . sidewalks . . . open, in repair, and free from nuisance.” Under the statute, the city may, in turn, require an abutting property owner to “maintain all property outside the lot and property lines and inside the curb lines upon the public streets,” with the exception of removing “diseased trees or dead wood on the publicly owned property or right-of-way.” Iowa Code §364.12(2)(c).

The City of Clarinda imposed such a maintenance requirement on abutting property owners. Its ordinance states in pertinent part: “It is the responsibility of the abutting property owners to maintain in a safe and hazard-free condition any sidewalk outside the lot and property lines and inside the curb lines or traveled portion of the public street.” Clarinda, Iowa, Code of Ordinances § 136.04. This ordinance does not impose liability in favor of a member of the public. A plain reading of the ordinance supports this conclusion as does our opinion in Busselle v. Doubleday, 486 N.W.2d 45 (Iowa Ct.App. 1992). There, the plaintiff, like Swisher, filed a negligence action against property owners after tripping and falling in front of their house. Id. at 46. We stated: “[L]iability of an abutting owner or occupant for injuries to a traveler ordinarily will not grow out of statutes or ordinances requiring him [or her] to repair sidewalks or remove snow and ice therefrom unless such liability is expressly imposed.” Id. We concluded that neither the legislature nor the city expressly imposed such liability. Id. at 47. Given the virtually identical language of the ordinance at issue i Busselle, that opinion is authoritative.

The district court did not err in granting the Briggs’s motion for summary judgment.

AFFIRMED.