Selger v. Steven Brothers, Inc.
1990 Cal. App. LEXIS 892, 272 Cal. Rptr. 544, 222 Cal. App. 3d 1585 (1990)
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Rule of Law:
A municipal ordinance requiring an abutting landowner to keep a public sidewalk clean and free of refuse imposes a duty owed to the municipality, not to the public, and therefore cannot be the basis for a negligence per se claim by a pedestrian injured on the sidewalk.
Facts:
- Steven Brothers, Inc. operated a nursery and hardware business in Los Angeles, fronted by a 13-foot-wide public sidewalk owned by the city.
- It was common for dog feces to be present on the sidewalk in the mornings.
- On the day of the incident, a store manager for Steven Brothers observed dog feces on the sidewalk when opening the store at 9 a.m.
- The manager was delayed by customers and had not yet instructed an employee to clean up the feces.
- Around 9:30 a.m., Miriam Selger, a 70-year-old woman, was walking on the sidewalk while looking at a floral display set up by Steven Brothers.
- Selger slipped on the dog feces, fell, and sustained severe injuries.
- The dog that left the feces did not belong to Steven Brothers, and Steven Brothers played no role in its deposit on the sidewalk.
Procedural Posture:
- Miriam Selger sued Steven Brothers, Inc. in a California trial court for negligence.
- The trial court instructed the jury that a violation of Los Angeles municipal ordinances requiring landowners to keep sidewalks clean constituted negligence per se.
- The jury returned a special verdict in favor of Selger, finding Steven Brothers negligent.
- The jury found Selger's total damages were $473,000, which was reduced to $402,050 to account for her 15% comparative negligence.
- Judgment was entered in favor of Selger.
- Steven Brothers, Inc., as the appellant, appealed the judgment to the Court of Appeal of California, with Miriam Selger as the respondent.
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Issue:
Does a city ordinance requiring an abutting landowner to keep a public sidewalk clean create a duty of care owed to a pedestrian, such that a violation of the ordinance constitutes negligence per se when the landowner did not create the hazardous condition?
Opinions:
Majority - Ashby, J.
No, a city ordinance requiring an abutting landowner to keep a public sidewalk clean does not create a private duty of care to pedestrians. At common law, an abutting landowner has no duty to keep a public sidewalk in a safe condition for the public unless the owner created the hazard. Ordinances requiring maintenance are interpreted as creating a duty owed only to the municipality, not a standard of care for the public, unless the ordinance clearly and unambiguously provides for civil liability to third parties. The Los Angeles ordinances in question do not contain such language; their enforcement mechanisms are penalties owed to the city, such as fines or nuisance abatement. Therefore, the violation of these ordinances cannot support a claim for negligence per se because the injured pedestrian, Selger, was not in the class of persons for whose protection the ordinances were adopted.
Analysis:
This decision reaffirms the traditional common law rule limiting the liability of abutting landowners for conditions on public sidewalks they did not create. It clarifies that municipal 'clean-up' ordinances, without express language creating civil liability, do not shift the primary responsibility for sidewalk safety from the municipality to the private landowner. The ruling prevents the expansion of premises liability doctrine onto public property and narrowly construes the application of negligence per se, requiring a clear legislative intent to create a private right of action for an ordinance violation. This precedent protects property owners from liability for transitory hazards created by third parties on adjacent public ways.
