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Albertie v. Louis & Alexander Corp.

August 25, 1994

MYRA ALBERTIE, APPELLANT
v.
LOUIS & ALEXANDER CORPORATION, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Trial Judge)

Before: Wagner, Chief Judge, Schwelb, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: This appeal arises from an action for personal injuries allegedly suffered by appellant Myra Albertie when she fell on snow and ice on the sidewalk adjacent to a Burger King restaurant in northwest Washington, D.C. The trial Judge granted summary judgment in favor of the operators of the restaurant (Louis & Alexander Corporation) and the owners of the real property on which the restaurant was located (Gartenhaus Associates), concluding that the defendants owed Ms. Albertie no duty of care at common law or under the District's snow removal statute, D.C. Code §§ 7-901 et seq. (1989). *fn1

On appeal, Ms. Albertie's primary contention is that the snow removal statute imposed a duty upon the defendants vis-a-vis Burger King customers to clear away the snow on the sidewalk adjacent to the restaurant. That statute, however, expressly authorizes enforcement by the Corporation Counsel, but makes no provision for a private right of action. Under these circumstances, and in light of persuasive precedent in this jurisdiction, we cannot agree with Ms. Albertie's position.

Ms. Albertie also claims in her brief that the defendants negligently increased the risk of injury to Burger King customers by clearing away the snow but failing to spread sand on the sidewalk after it had been cleared, and that this failure proximately caused her injuries. This contention, however, was not raised in the trial court or addressed by the trial Judge, and we perceive no plain error on the part of the Judge in failing to rule in Ms. Albertie's favor on his own initiative on the basis of a theory not advanced to him. Accordingly, we affirm.

I.

The record before the trial court, viewed (as it must be) in the light most favorable to Ms. Albertie, See Clyburn v. 1411 K St., Ltd. Partnership, 628 A.2d 1015, 1017 (D.C. 1993), discloses that there was a snowstorm in the Washington, D.C. area on January 22, 1987, and during the night that followed, and that approximately eleven inches of snow fell on the city. There was no further accumulation after 6:00 a.m. on January 23, 1987.

At approximately 5:45 p.m. on January 23, Ms. Albertie, who had been shopping at a nearby Safeway supermarket, decided to make a purchase at the Burger King. She walked along a narrow path that had apparently been shovelled along the sidewalk in front of the restaurant. There were, however, patches of ice in the cleared area. Ms. Albertie claimed that she was being "extremely careful to prevent my falling." Nevertheless, she slipped, fell, broke her ankle, and suffered "excruciating pain." Ms. Albertie filed a timely suit against both Louis & Alexander and Gartenhaus.

Louis & Alexander filed a motion for summary judgment, which the trial Judge granted in a three-page written order. Gartenhaus subsequently joined the motion, and the Judge also granted summary judgment to that defendant. This appeal followed.

II.

We think it beyond dispute that Ms. Albertie had no right of action at common law against either defendant for failing to clear the snow. In Norville v. Hub Furniture Co., 59 App. D.C. 29, 32 F.2d 420 (1929), the court stated the applicable "rules and principles of the common law" as follows:

In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the side walk in front of it free from ice and snow coming thereon from natural causes, . . . nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he owes to ordinary pedestrians.

Id. at 30, 32 F.2d at 421 (citations omitted); accord, Hecht Co. v. Hohensee, 65 App. D.C. 328, 329, 83 F.2d 585, 586 (1936); Radinsky v. Ellis, 83 U.S. App. D.C. 172, 167 F.2d 745 (1948). As the court explained in Radinsky, this is because sidewalks in the District of Columbia

are publicly owned, and are controlled exclusively by the municipal authorities of the District. It is, therefore, primarily the duty of the local government to keep its sidewalks ...


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