Schilling v. Schoenle

782 S.W.2d 630, 1990 Ky. LEXIS 5, 1990 WL 2766
CourtKentucky Supreme Court
DecidedJanuary 18, 1990
Docket88-SC-639-DG, 88-SC-640-DG and 89-SC-61-DG
StatusPublished
Cited by13 cases

This text of 782 S.W.2d 630 (Schilling v. Schoenle) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schilling v. Schoenle, 782 S.W.2d 630, 1990 Ky. LEXIS 5, 1990 WL 2766 (Ky. 1990).

Opinions

VANCE, Justice.

The question is whether a city, by enacting an ordinance which requires abutting landowners to maintain sidewalks and keep them in repair, can create liability in the abutting landowner to respond in damages to a pedestrian who is injured because of the failure of the landowner to keep the sidewalk in good repair.

On January 17, 1985, the appellee and cross-appellant, Carolyn Schoenle, was injured as a result of a fall upon a sidewalk which abutted a store building owned by the appellant and cross-appellee, The Aldan Company, in which the appellant and cross-appellee Schilling operated a men’s clothing store. A defect in the sidewalk was covered with snow at the time of her fall.

Ms. Schoenle failed to give the 90-day notice to the city required by K.R.S. 411.-110 as a prerequisite to the maintenance of an action against the city. She commenced an action against The Aldan Company and Schilling on January 14, 1986. They each filed third-party claims against the City of Newport and cross-claims against each other. Ms. Schoenle also moved to supplement her complaint to state a complaint against the City of Newport.

The trial court overruled Ms. Schoenle’s motion to make the City of Newport a party-defendant because of her failure to comply with the statutory 90-day notice. The court sustained the city’s motion for summary judgment on the third-party complaints of The Aldan Company and Schilling. The court granted the motions of The Aldan Company and Schilling for a summary judgment on the complaint of Ms. Schoenle, holding that the city ordinance did not create any liability on the part of abutting property owners to injured pedestrians.

The theory of liability advanced by Ms. Schoenle as to The Aldan Company was that the City of Newport had enacted an ordinance which required landowners to maintain and keep in good repair the sidewalk abutting their property. This ordinance was enacted for public safety purposes, it was claimed, and therefore an injury resulting from a violation of the ordinance created a liability for damages upon The Aldan Company and abutting landowners.

[632]*632A second theory of liability as to The Aldan Company was that it had been notified by the city of the defect in the sidewalk and its duty to repair it, and that The Aldan Company had accepted responsibility therefor and had agreed to make the repairs.

The theory of liability against Schilling was that as a tenant of The Aldan Company, he was also liable for the maintenance and repair of the sidewalk abutting his place of business.

Ms. Schoenle attempted to assert her claim against the city upon the ground that the city was not prejudiced by the lack of the 90-day notice and also that the city should be estopped to assert the notice statute as a defense because the enactment by the city of its ordinance placing responsibility for repairs upon the abutting landowner misled and induced her to sue the landowner rather than the city, to her detriment.

Ms. Schoenle appealed to the Court of Appeals and raised all of the issues she had raised in the trial court. The Court of Appeals held that the trial court was correct in denying her motion to amend the complaint to name the City of Newport as a party defendant. It reversed the trial court’s ruling that the ordinance did not create any liability in abutting property owners, and failed to mention the issue raised by Ms. Schoenle that The Aldan Company had accepted responsibility and had agreed to repair the sidewalk. The case was remanded to the trial court for further proceedings consistent with the opinion.

We granted the motion of The Aldan Company and of Schilling to review the decision of the Court of Appeals as to the effect of the city ordinance and granted the motion of Ms. Schoenle to review the Court of Appeals decision that she was not entitled to file an amended complaint against the City of Newport. These two issues are the only matters before us for review.

Although we do not find anywhere in the record a complete copy of the ordinance which is the subject of this litigation, the parties have practiced this case as if an ordinance of the City of Newport, effective June 1, 1988, imposed a duty upon landowners to keep abutting sidewalks in good repair and free of snow, ice, mud, and other debris. There is no contention by any party that the ordinance expressly mandates that abutting property owners shall be liable to pedestrians for injuries resulting from failure to properly maintain a sidewalk. We granted discretionary review to consider the effect of such an ordinance. There is no constitutional challenge, nor is there an issue as to the validity of the enactment of the ordinance.

The issue presented is not a new one. This court has considered similar issues in Vissman v. Koby, Ky., 309 S.W.2d 345 (1958); Webster v. Chesapeake & O. Ry. Co., 32 Ky.L.Rptr. 404, 105 S.W. 945 (1907); Equitable Life Assur. Soc. v. McClellan, 286 Ky. 17, 149 S.W.2d 730 (1941).

In Vissman v. Koby, supra, an abutting property owner in Louisville, Kentucky, allowed fallen leaves to accumulate upon a sidewalk and conceal a defect therein similar to the way in which snow was allowed to accumulate and conceal the defect in the sidewalk in the instant case. In Vissman, and in this case, a pedestrian fell upon the sidewalk and was injured, and in each case suit was instituted against the abutting property owner alleging that a city ordinance required the abutting property owner to keep the sidewalk in good repair.

In Vissman v. Koby, supra, this court held that the effect of such an ordinance was to create only a duty from the landowner to the city to bear the cost of maintenance and repair of the sidewalk, but that it did not impose any liability upon the landowner to travelers injured by the defective walk. Vissman also held that even though the ordinance was enacted as a public safety measure, the violation of the ordinance did not amount to negligence per se, and did not impose liability per se upon the abutting landowner.

Vissman v. Koby, supra, is controlling authority on the facts of this case unless it can be distinguished or unless it is overruled. The Court of Appeals distinguished Vissman upon the ground that when it was [633]*633decided there was no legislative grant of home rule authority to the municipality to enact the ordinance such as now exists by reason of K.R.S. 82.082 and 83A.060(5).

It is true that the General Assembly has now authorized municipalities to exercise any power and perform any function within its boundaries that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. K.R.S. 82.082.

The City of Louisville, as a city of the first class, had general “home rule” legislative authority long before the General Assembly granted that authority to other municipalities. K.R.S. 83.010 authority, or lack of it, for the city to enact the ordinance is really irrelevant, however, because the decision in Vissman v. Koby, supra, was not premised upon any lack of authority of the city to validly enact the ordinance. Instead, the validity of the ordinance was conceded, and the decision in Vissman

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Schilling v. Schoenle
782 S.W.2d 630 (Kentucky Supreme Court, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
782 S.W.2d 630, 1990 Ky. LEXIS 5, 1990 WL 2766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schilling-v-schoenle-ky-1990.