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December 9, 1965

Stanley ROBINSON, Plaintiff,

The opinion of the court was delivered by: HOLTZOFF

 This action to recover damages for personal injuries is being tried without a jury. At the close of the plaintiff's case, the defendants moved to dismiss the complaint for failure to make out a case of liability on the part of either defendant. It must be borne in mind that such a motion performs a different function in a nonjury case than it does at a trial by jury. At a jury trial, such a motion brings up the question whether the plaintiff made out a prima facie case that is sufficient for submission to the jury. In a nonjury case, as appears from Rule 41(b) of the Federal Rules of Civil Procedure, if such a motion is made, the Court, as the trier of the facts, may determine the facts and render a judgment against the plaintiff, or decline to render a judgment at that stage. Such, of course, was the old equity practice that existed before the present Rules.

 In this case, the plaintiff was a tenant in an apartment hotel. The hotel was, in part, occupied by permanent guests, and, in part, by transients. It had 317 units, of which 69 were for transient occupancy. The plaintiff, as a permanent tenant, was on his way home shortly after midnight on December 21-22, 1962, and as he alighted from a taxicab, he started to walk across the sidewalk and the adjoining private walkway to the hotel entrance. It had been snowing all day, although the snowfall had ceased prior to this time. It is not disputed that the sidewalk and the approach to the hotel, both of which were of concrete, were covered with a sheet of ice. He slipped on the ice and was hurt.

 It is the law of the District of Columbia that the owner of real property is under no duty to keep the sidewalk in front of his property clear of snow and ice for the benefit of pedestrians. The rule is different, however, in respect to invitees. The plaintiff obviously was an invitee. It is a general principle of law that a landlord is required to maintain means of ingress and egress to his building in a reasonably safe condition for tenants and other invitees. In Pessagno v. Euclid Investment Co., 72 App.D.C. 141, 112 F.2d 577, this general principle was held to include a duty on the part of the landlord to keep the approaches to an apartment house, or a hotel, reasonably safe so that invitees would not be injured by the presence of an accumulation of snow or ice on the approaches.

 The first question presented here is whether the plaintiff fell on the public sidewalk or on private property consisting of a walkway between the sidewalk and the hotel door. The two were continuous and covered by the same type of concrete. The burden of proof is upon the plaintiff to establish liability by a fair preponderance of the evidence. The plaintiff has not established affirmatively that he fell on private property rather than on a public sidewalk. However, the spot at which he slipped and fell, according to the testimony, is on the very border line between the two. If the place where he fell was a determinative factor, the case would be ruled by Altemus v. Talmadge, 61 App.D.C. 148, 151, 58 F.2d 874, 877, also a decision of the Court of Appeals for this Circuit. In that case, the plaintiff fell on a defect in the sidewalk, a part of which was on private property, and a part on the property of the District of Columbia. The Court held, under those circumstances, that both the District and the owner of the private property were liable.

 This Court would go further, however, and would hold that the rule requiring the owner of a multiple dwelling to provide a safe means of ingress and egress obviously is not limited to private property. It must include the portion of the sidewalk immediately adjoining or abutting the entrance to private property. Ordinarily, a person cannot enter a building without first walking on the public sidewalk, and if there is a duty on the part of the building owner to provide a reasonably safe means of ingress and egress, it logically follows that this duty is as applicable to the portion of the public sidewalk that abuts on the property as it is to that portion of the approach that is on the private property. To be sure, in the Pessagno case, the fall took place on a private driveway of an apartment house, but the principle of that case would be equally applicable to the portion of the public sidewalk immediately adjoining or located in front of the building, because without using it a person cannot enter the building.

 On either of these grounds, the plaintiff in this case has overcome the first hurdle and has shown himself entitled to recover, if he can establish that his injuries were caused by some negligence on the part of the defendants within the principles just discussed. This brings us to the question whether there is evidence justifying an inference of negligence on the part of the defendants.

 In this case, it had been snowing all day, starting about 7:00 o'clock in the morning. The defendants had shifts of workmen shoveling snow off the private walkway and off the sidewalk in front of the building. As soon as they had finished shoveling snow, they would scatter a chemical that would expedite the melting of the snow. More snow fell, and the same operation was repeated.

 These operations were, however, suspended for the night at about 9:45 p.m. By the time the plaintiff arrived home at about 12:30 a.m., a sheet of ice had formed on top of the concrete both on the sidewalk adjoining the building and the areaway between the sidewalk and the entrance. If the operations, to which reference has been made, had continued through the evening, it may be fairly inferred that this sheet of ice would not have been permitted to form.

 We are dealing here with a combination of an apartment house and a transient hotel. It can be reasonably inferred that in a transient hotel, guests come and go late in an evening, and sometimes in the early hours of the morning. The duty to maintain the approaches to the building reasonably free of snow and ice should be as applicable during the night as during the day. Under the circumstances the Court is of the opinion that on the present state of the evidence, there is a basis for an inference of negligence on the part of the defendants, and if negligence existed, unquestionably it was that negligence that was the proximate cause of the accident.

 There is no basis here for any contention of contributory negligence. The plaintiff alighted from the taxicab. He had the right to assume that the approach to the hotel was in reasonably safe condition. He, apparently, did not realize, until he had walked a step or two, that the approaches were covered with a film or layer of ice. By that time, it was too late. Moreover, there is no showing that there was any other way by which he could reach the entrance to the hotel. Bearing in mind that the burden of proof on the issue of contributory negligence is on the defendant, the Court is of the opinion that the evidence, so far introduced, shows no basis of an inference of contributory negligence.

 There is one case in this connection that emphasizes the difference between a state of facts where negligence exists and a state of facts where it does not exist. The facts in the Pessagno case, to which reference has been made, were similar to those in the instant case. In C. W. Simpson Co. v. Langley, 76 U.S.App.D.C. 365, 131 F.2d 869, a sleet storm had begun in the early hours of the morning. The janitor arose at 5:00 o'clock in the morning and proceeded to attend to the furnace because he was to furnish heat and, later on, he went outside in order to take care of the conditions of the sidewalk. The plaintiff in that case had fallen on the slippery sidewalk previously to the time when the janitor turned to this task. In other words, there, the accident took place within a couple of hours after the storm began and before it was reasonable to expect the landlord to start taking care of the sidewalk and make it less slippery than the storm had rendered it. The Pessagno case is distinguished on the facts to which I have just referred.

 There is one other circumstance to which reference might well be made. The defendants undertook the task of clearing the sidewalk to the same extent that they cleared the private walkway. Even if there was no legal duty to do so, once a person voluntarily undertakes to perform a task, he is held to the requirement that it should be done free of negligence, and if in this case there was negligence in taking care of the private areaway, there was equal negligence in taking care of the public sidewalk.

 For all of these reasons, the Court is of the opinion that the case should not be disposed of on this motion, but determined only after the ...

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