 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Williams v. City of Durham8/20/1996
walks are designed. . . . The use of part of the sidewalk as a driveway is imperative in most, if not all, locations. Such use is no more peculiar or unusual than using the sidewalk for pedestrians who desire to visit the owners of the abutting property.
Winston v. Hansell, 160 Cal. App. 2d 570, 325 P.2d 569, 573 (Cal. Dist. Ct. App. 1958). Further, the Supreme Court of Alabama observed that customers who gain access to a business via a driveway running over the sidewalk are "as much a part of the traveling public when crossing the sidewalk as when they were driving in the streets approaching it." City of Bessemer v. Brantley, 258 Ala. 675, 65 So. 2d 160, 165 (1953). Cf. State v. Perry, 230 N.C. 361, 364, 53 S.E.2d 288, 290 (1949)(driveway over sidewalk considered public highway for purposes of statute criminalizing driving under the influence on public highways; "When [a proprietor] and those whom he invites to visit his premises exercise this right of ingress and egress, they pass from private property to public way at the property line."). Accordingly, stated the Alabama court,
we cannot see that the liability of [an abutting property owner or lessee] is different from that which would have existed had the appellee been injured by a depression, not in the sidewalk, but in the street.
Id.
Under the circumstances sub judice, therefore, the record reflects no "special use" of the sidewalk portion of the driveway in question save for normal ingress and egress by automobiles of patrons and employees of Euroclassics. See also Whitlow v. Jones, 134 Ore. App. 404, 895 P.2d 324, 326 (Or. Ct. App. 1995)("Although a business establishment [here, an apartment complex] derives special advantage from the use of a sidewalk by its business invitees for ingress to and egress from the business, that use is not a special use for liability purposes, because it is customary and normal."); Votsis v. Ward's Coffee Shop, Inc., 217 Va. 652, 231 S.E.2d 236 (Va. 1977)(use of sidewalk by customers of coffee shop and supermarket to obtain access to parking lot was lawful and normal, and imposed no duty on those businesses to repair sidewalk); see generally 88 A.L.R.2d, (supra) , at 386-89.
We note in closing that we have not been called upon to address, and therefore express no opinion regarding, whether a municipality may delegate by ordinance its duty to repair sidewalk damage to an abutting landowner, and further whether, if such duty may be delegated, a landowner may be held liable to a pedestrian injured in consequence of the landowner's failure to comply with such ordinance.
As the City showed no legal duty on the part of Euroclassics to repair defects alleged to have existed in the latter's driveway, Euroclassics was entitled to judgment as a matter of law on the City's third-party claim, and the trial court did not err by entering summary judgment in favor of Euroclassics.
Affirmed.
Judge LEWIS concurs.
Judge WYNN concurs in the result only.
|