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SMITH v. UNITED STATES

January 18, 1965

William J. SMITH and Hunter Currin Smith, Plaintiffs,
v.
UNITED STATES of America and The Christmas Pageant of Peace, Inc., a District of Columbia Corporation, Defendants



The opinion of the court was delivered by: HOLTZOFF

This is an action by two pedestrians to recover damages for personal injuries sustained by falling on a public boardwalk located in a public park immediately south of the White House in Washington, D.C., in a region known locally as the Ellipse.

 The two plaintiffs, husband and wife, had come up from their home in Richmond, Virginia, to visit a relative in Alexandria on the afternoon of December 24, 1961. After dinner they drove to the Ellipse for the purpose of visiting the pageant, parked their car, and proceeded to the walkway, in order, presumably, to walk down to the Christmas tree and the stage where the pageant was being performed. It had been snowing during the day, although the snowfall had stopped prior to that time. The evidence shows that the end of the walkway was largely covered with snow and ice. They stepped on the walkway and after proceeding a few steps each of them fell and sustained personal injuries.

 This action is brought to recover damages for these injuries against the United States, under the Federal Tort Claims Act, and against the corporation under the general law of negligence. At the close of the plaintiffs' case, the Court dismissed the complaint as to the corporation on the ground that the corporation had no control or responsibility with respect to the walkways. The case then proceeded as against the United States.

 The Federal Tort Claims Act provides that the United States shall be liable for negligence of its employees as a private individual under similar circumstances under the law of the jurisdiction where the accident occurs. This Court has had occasion to hold in Gilroy v. United States, 112 F.Supp. 664, 666, that:

 'The words, 'as a private individual', are not used as words of art or as a limitation, but, rather, in a descriptive manner to indicate that the United States should be liable in the same manner and to the same extent as anyone else.'

 This Court further stated that:

 'A municipal corporation may be considered for the purposes of that provision as a private individual, and, therefore * * * the liability of the United States in respect to defects in the streets that it controls is the same as the liability of a municipality in the same jurisdiction, or the liability of any other political subdivision in control of streets.'

 This statement was quoted with approval by Judge Forman, then United States District Judge for the District of New Jersey, now a United States Circuit Judge for the Third Circuit, in Pennsylvania R.R. Co. v. United States, D.C., 124 F.Supp. 52, 66. Accordingly, it is the view of this Court that the liability of the United States in respect to sidewalks that it controls in the District of Columbia should be governed by the same rules as apply to sidewalks controlled by the District of Columbia Government and the liability of the local government.

 The law relating to streets in the District of Columbia differs in a number of ways from that prevailing in many other jurisdictions. In many cities the property owner owns to the center of the street abutting on his land or building, subject to a public easement of passing and re-passing over the strip between the building line and the center of the street. In Washington, however, the fee in the street is owned by the District of Columbia. The property owner owns only to the building line, but of course has an easement of passing and re-passing over the abutting strip. The District of Columbia is under a duty to keep the streets in a reasonably safe condition, and is liable in damages to any person who is injured for its failure in the performance of this duty, District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472; Booth v. District of Columbia, 100 U.S.App.D.C. 32, 33, 241 F.2d 437, as well as many other cases that might be cited. The District of Columbia, however, is not an insurer of the safety of the streets and is responsible only in case of failure to use reasonable care.

 In applying this general principle to the duty of keeping the streets reasonably clear from snow and ice, the Court of Appeals for the District of Columbia Circuit, has imposed a somewhat limited obligation on the District of Columbia. The leading case on this point is Smith v. District of Columbia, 89 U.S.App.D.C. 7, 10, 189 F.2d 671, 674. The opinion is quite lengthy, but a few excerpts may be useful. The Court stated that the District of Columbia 'cannot be held liable for injuries due to snow or ice as or just after the snow has fallen or the ice formed and when the city has had no opportunity to correct dangerous conditions thus created'.

 And again:

 '* * * absent a defect in the street itself, it cannot be held liable for injuries due to the mere slipperiness of snow or ice in its natural state, because it cannot cure such slipperiness on ...


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