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Murphy v. Schwankhaus

May 10, 2007

STARR L. MURPHY, APPELLANT,
v.
NANCY SCHWANKHAUS, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-9318-04) (Hon. Frederick H. Weisberg, Trial Judge).

The opinion of the court was delivered by: Ferren, Senior Judge

Argued April 18, 2007

Before WASHINGTON, Chief Judge, REID, Associate Judge, and FERREN, Senior Judge.

This case concerns injuries to the plaintiff-appellant, Starr L. Murphy, who fell on the icy sidewalk in front of an apartment building owned by the defendant-appellee, Nancy Schwankhaus. According to Murphy, a tenant of Schwankhaus -- allegedly her agent -- had negligently shoveled the snowy sidewalk, leaving a patch of ice that caused Murphy to slip, fall, and fracture her leg and ankle -- injuries, Murphy says, warranting recovery of damages against Schwankhaus. Perceiving no genuine issues of material fact, the trial court granted summary judgment for Schwankhaus, concluding that there had been no breach of any duty to Murphy. We affirm.

I.

Snow fell in the Washington area on the evening of February 3, 2004. At approximately 9:00 the next morning, Murphy was walking along the shoveled sidewalk abutting 2304 40th Street, N.W., when she slipped and fell on an ice patch concealed from her view by a dusting of snow. Before she slipped, it had appeared to Murphy that, "aside from a light powder of snow still remaining on the sidewalk, the walkway [was] clear and safe for public foot travel." Nonetheless, under that light snow an ice patch 3/4 of an inch thick had filled a depression in the sidewalk. After her fall, Murphy noticed that the ice patch had "light scratch marks" on it, which looked as though they had been left by a shovel. She testified on deposition that the sidewalk "looked like it had been cleared, pushed, you know, to the sides."

At the time of the accident, the property at 2304 40th Street, N.W. belonged to appellee Schwankhaus, who rented out the premises to a number of tenants. One of the tenants, Theresa Peters, acknowledged at her deposition that she had shoveled the sidewalk on February 3, 2004, at around 8:00 or 9:00 p.m.*fn1 As to whether she had known that there was ice on the sidewalk, she replied that she remembered thinking "it could be slick," but she could not say whether she remembered ice. She "just push[ed] [the snow] off to the side . . . just to clear so that [she and her dog] could get through," adding that "it wasn't a professional job." When shown a picture of the premises she acknowledged that she "possibly" recalled a disparity in grade in the walkway.*fn2 She also acknowledged that she had not attempted to break apart any ice. Rather, her efforts were just directed at removing the "free snow," in order "to clear the way to help [her] dog get through."

In her deposition, Schwankhaus testified that when it snowed, either she, a family member, or a tenant would clean up the sidewalk. She did not arrange for contractors to do the job. Instead, she kept a shovel, salt, and possibly sand in a closet on the premises and thought that her tenants would "off and on" use salt to clear away ice patches.*fn3 In the 1990s, she had a tenant who took charge of clearing the sidewalk, but after he left, "nobody else . . . want[ed] to do anything." There were times, however, when she would reimburse her tenants for buying salt.

The parties also took the deposition of Joseph Nay, a neighbor who lived at 2315 40th Street, N.W. When asked whether the sidewalk in front of 2304 appeared to have been shoveled, Nay replied, "I wouldn't say so." Instead, it "just looked like it had been walked in a lot and kind of melted and refrozen . . . ."

The trial court, in considering Schwankhaus's motion for summary judgment and Murphy's opposition, concluded that there were "no material issues of fact for a jury to decide." Noting the parties' agreement that "the piece of ice on which plaintiff slipped . . . formed before any action [was] taken by the Defendant's tenant," the trial court ruled that, given the prevailing conditions, the sidewalk would have been slippery and would have presented a dangerous condition for pedestrians even if defendant's tenant had not undertaken to make the sidewalk somewhat more passable. When it is snowing or has snowed, all pedestrians are on notice that walking conditions may be dangerous and to use caution. Defendant's tenant attempted to clear only a portion of the walk,*fn4 and Plaintiff has not provided the court with any case that suggests the law required her to do more.

II.

"Summary judgment is proper when a party fails to establish an essential element of his case upon which he bears the burden of proof." Varner v. District of Columbia, 891 A.2d 260, 265 (D.C. 2006). To be entitled to summary judgment, Schwankhaus must demonstrate that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Clyburn v. 1411 K Street Ltd. P'ship, 628 A.2d 1015, 1017 (D.C. 1993); Super. Ct. Civ. R. 56 (c). We construe the record in the light most favorable to the party opposing summary judgment. Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C. 2005). On appeal, this court reviews summary judgment de novo, conducting an independent review of the record and applying the same substantive standard used by the trial court. Varner, 891 A.2d at 265; Weakley, 871 A.2d at 1173.

The party seeking summary judgment bears the initial burden of demonstrating the absence of genuine issues of material fact, and that party may rely upon the absence of proof concerning essential elements of plaintiff's claim. See Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party has demonstrated that there appear to be no genuine issues of material fact, the burden shifts to the non-moving party to ...


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