Boss-Harrison Hotel Co., Inc. v. Barnard

266 N.E.2d 810, 148 Ind. App. 406, 1971 Ind. App. LEXIS 466

• Court: Indiana Court of Appeals
• Decided: February 22, 1971
• Docket: 570A83
• Status: Published

Opinions

Sharp, J.

This action was commenced by the PlaintiffAppellee, Margaret T. Barnard, by the filing of a complaint against the Defendant-Appellant, Boss-Harrison Hotel Co., Inc., to recover damages for personal injuries allegedly sustained as a result of a fall on a public sidewalk adjacent to the Appellant’s Hotel in downtown Indianapolis, Indiana. The case was tried by the court without the intervention of a jury and resulted in a judgment for the Appellee in the sum of $15,000.00. The Appellant’s Motion to Correct Error was overruled which is the sole assignment of error here.

A summary of the evidence most favorable to the Appellee and the judgment below shows that the Appellee, in returning to work after lunch, was walking west on the south side of West Market Street in Indianapolis, Indiana. She proceeded as far as the front of the Harrison Hotel located on the southeast corner of West Market Street and Capitol Avenue in Indianapolis where she discovered that the portion of the sidewalk under the marquee had been cleared and that there was a pathway of approximately 4 to 5 feet cleared from the marquee west of Capitol Avenue. The total width of the sidewalk in this area is approximately 20 feet. The Appellee stopped before proceeding further as there was a group of men walking east from the State House along the cleared portion of the sidewalk and she waited for them to pass before continuing. Appellee then took one step and the next thing she knew was coming to and laying flat on the icy part of the sidewalk directly in front of the Hotel. Appellee was walking alone at the time and where she was walking the sidewalk appeared clear to her.

The sole question presented here is whether the Appellant, in attempting to partially clear the public sidewalk of ice and snow, created a more hazardous condition than had previously existed because of the inclement weather and, if so, was said condition the actual and proximate cause of the injury sustained by the Appellee.

The factual situation presented here is indistinguishable from the case of Halkias v. Gary National Bank, 142 Ind. App. 329, 234 N. E. 2d 652 (1968). In that case the facts showed that ice and snow had been piled high “between the curb between the street and sidewalk” by a snow plow operated by the State. A narrow passageway had been cleared through it wide enough for persons to walk in single file. This court in Halkias, supra, held that there could be no liability in such a situation unless the defendant had created a more dangerous condition and the injuries were directly attributable to that condition. This court found that neither of the above factors had been established and upheld a directed verdict for the defendant. There was no concrete evidence, only conjecture and speculation, that the piece of ice on which the plaintiff fell was due to or originated from the efforts of the defendant.

This case is substantially the same as Halkias. We can find no valid distinction. We are especially persuaded by the authorities selected by our court in Halkias.

Therefore, on the basis of Halkias this case must be reversed and remanded with instructions to enter judgment for the Defendant-Appellant. Reversed and remanded.

Hoffman, C.J., Staton and White, JJ., concur.