OPINION
A12 • HERMISTONHERALD.COM
WEDNESDAY, DECEMBER 25, 2019
COLUMN
Ask a lawyer: Can a homeowner be held liable
if someone falls on a snow-covered or icy sidewalk?
Q
uestion: Given the cur-
avoid harming others. A person’s
rent time of the year,
conduct is negligent if that per-
with icy roads and side-
son fails to use reasonable care.
walks, I shovel my sidewalks
Reasonable care is the degree
every time it snows. I do the
of care and judgment used by
same for my two elderly neigh-
reasonably careful people in the
bors. So my question is, “Is a
management of their own affairs
homeowner responsible, lia-
to avoid harming themselves or
ble, if an individual slips and
others. A person fails to use rea-
falls on a snow covered or icy
sonable care when that person
sidewalk?”
does something that
The short answer
a reasonably care-
is, there is a solid
ful person would not
legal argument to hold
do, or fails to do some-
a homeowner lia-
thing that a reason-
ble, within the city of
ably careful person
Hermiston, if someone
would do under similar
slips and falls (plus an
circumstances.
injury) on the home-
In deciding whether
owner’s sidewalk.
a person used reason-
Here’s why: Fail-
Blaine Clooten
able care, consider the
ing to maintain a side-
dangers apparent or
walk, in this case failing to keep
reasonably foreseeable when the
the sidewalk clear of snow/ice,
events occurred. Do not judge
creates an issue of negligence.
the person’s conduct in light of
There’s two basic types of neg-
later events; instead, consider
ligence I’ll discuss briefl y, plain
what the person knew or should
old negligence (ordinary neg-
have known at the time.
ligence); and what is known as
The law assumes that all peo-
Negligence Per Se (a legal doc-
ple have obeyed the law and
trine in Oregon whereby an act
have been free from negligence.
is considered negligent because
The mere fact that an accident or
it violates a statute or regulation/ injury occurred is not suffi cient
ordinance).
by itself to prove negligence.
Let’s fi rst look at negligent
It is, however, something you
conduct (ordinary negligence), as may consider along with other
reviewed in the Oregon State Bar evidence.”
Books and jury instruction:
Elements of negligence:
”The law requires every per-
1) The defendant’s conduct
son to use reasonable care to
was negligent (see above);
2) The defendant’s negligent
conduct was a cause of harm to
the plaintiff; and
3) The harm was reasonably
foreseeable.
This analysis of course does
not consider issues of compar-
ative fault. In modifi ed com-
parative fault, the plaintiff only
recovers if they are found 50%
or 51% at fault or less. Oregon
has a modifi ed comparative neg-
ligence law. But the question pre-
sented was, “...is the homeowner
liable,” which I take to mean
more, “can a homeowner be lia-
ble?” which is, yes, a homeowner
can be liable.
The second, and more inter-
esting question, is violation of
Negligence Per Se.
City of Hermiston code of
ordinances can help shape negli-
gence per se arguments. Here, if
the homeowner is found to have
violated a city ordinance, they
can be liable for negligence, sim-
ply by violating the ordinance.
Example: If you fi nd that the
defendant (homeowner) violated
this ordinance, the defendant’s
conduct was negligent, unless the
defendant proves that he or she
was acting with reasonable care
under the circumstances.
The important ordinances in
Hermiston to consider:
130.05 ENDANGERING
PEDESTRIANS.
(A) It shall be unlawful for
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“PLEASE MAKE SURE TO KEEP YOUR
SIDEWALKS CLEAR OF SNOW AND ICE
AS INCLEMENT WEATHER APPROACHES.
YOU’LL NOT ONLY AVOID LIABILITY,
YOU’LL PERFORM YOUR CIVIC DUTY!
the owner, lessee or occupant of
any building or structure to suf-
fer or permit rain water, ice or
snow, which has accumulated on
the building or structure of such
owner, lessee or occupant, to fall
from such structure onto a side-
walk or other public way.
(B) The offense described in
this section, endangering pedes-
trians, is a Class C violation.
94.10 REMOVAL OF ICE
AND SNOW.
It shall be unlawful for the
owner, lessee, occupant or per-
son having control or custody
of any premises or unimproved
property to allow snow or ice to
stand upon any sidewalks abut-
ting upon the premises or prop-
erty for a period longer than
two hours after the snow or ice
has ceased to fall thereon; pro-
vided, however, that if the snow
is falling or the ice accumulat-
ing after the hour of 6:00 p.m.,
the same shall be removed within
two hours after 7:00 a.m. on the
next day.
(Ord. 1976, passed 10-26-98)
Penalty, see § 94.99
What this shows us in Herm-
iston is that a homeowner may
violate city ordinance if they fail
to keep snow/ice from accumu-
lating on their sidewalk; and if
a person is hurt, the homeowner
may be liable under a legal the-
ory of negligence per se.
Thank you for helping your
elderly neighbors; and my fel-
low citizens of Hermiston, please
make sure to keep your side-
walks clear of snow and ice as
inclement weather approaches.
You’ll not only avoid liability,
you’ll perform your civic duty!
For more information on city
of Hermiston codes please visit:
https://www.codepublishing.
com/OR/Hermiston/
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shared with Clooten Law in your
inquiry will not be protected as
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541-567-1837
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502 Real Estate
How Much is your Home Worth?
Call Matt Vogler, The Week-
end and After Hours Realtor,
for a free Market Analysis.
541.377.9470. More Listings
needed to meet current buyer
demand!
John J. Howard & Assoc.
(541) 377-9470
Selling or Buying a property?
If you are thinking of selling or
buying a home, call for a free
consultation. Day’s or eve-
nings, 7 days a week.
Rocky Mikesell
Blue Jeans Realty
“Our office is wherever you
are”
(541-379-8690)
One Reliable Realtor accessing
all properties to find the home
for you---Prompt, Courteous,
Honest service to represent you
in Buying and Selling prop-
erty--TURN HERE REALTY--
-Email: kjcbaird@gmail.com or
call 541 377 6855
TURN HERE REALTY &
TRAVEL
305 SW Court Ave Pendleton
504 Homes for Sale
Prices are up! Now may be the
time to gain some equity and
move up to a larger home. Call
Matt Vogler for a free Market
Analysis.
John J. Howard & Assoc.
(541) 377-9470
Current MLS listings include
several 3 and 4 bedroom, 2 bath
homes for sale in popular loca-
tions. Call Matt Vogler, “The
Weekend and After Hours Re-
altor” for addresses and pricing.
John J. Howard & Assoc.
541.377.9470
504 Homes for Sale
RMLS#18381851
Pendleton Property 3 br 2 bath
manufactured home on a big
lot with small 2 b/r 1bath rental
house on same lot. Priced to sell
at $145,000. Call Cathy for more
info. (541) 215-0103.
Garton & Associates
541-276-0931
Call 541 377 6855 today to tour
a lovely 3 bed 2 bath home
on the North Hill.#19641273
Amazing views, Double lot with
room to double your square
footage as you complete the
basement. This shiny home is
move in ready . $189 900
TURN HERE REALTY &
TRAVEL
305 SW Court Ave Pendleton
4 Bed 2 Bath with 2 large living
areas, fenced yard. Move in
ready with fresh paint and new
carpet. Your new home is wait-
ing for you and its time for the
move - Call Kerry 541 377 6855
to tour today # 19644354...
$160 000
TURN HERE REALTY &
TRAVEL
305 SW Court Ave Pendleton
$285,000 - 4 Bedroom 3
Bath Tri Level. Very nice
throughout. Large fenced yard.
Updated kitchen. Large deck
and nice city view. Close to
shopping. MLS# 19655891
Rocky Mikesell
Blue Jeans Realty
“Our office is wherever you
are”
(541-379-8690)
Never a better time to sell
your home. Interest rates are
$285,000 - 4 Bedroom 3
Bath Tri Level. Very nice
throughout. Large fenced yard.
BUY IT! SELL IT!
FIND IT!
CALL
1-800-962-2819
How Much is your Home Worth?
Call Matt Vogler, The Week-
end and After Hours Realtor,
for a free Market Analysis.
541.377.9470. More Listings
needed to meet current buyer
demand!
John J. Howard & Assoc.
(541) 377-9470
504 Homes for Sale
$255,000 – 2018 Fleetwood
MFG Home on 2.51 Acres. 4
Bed 2 Bath. Open floor plan
with Beautiful Kitchen. Four
corrals with Lots of room for
Livestock. MLS# 19510220
Rocky Mikesell
Blue Jeans Realty
“Our office is wherever you
are”
(541-379-8690)
$289,900
View! 4bed, 2.5bath, w/office
and family room. Recent up-
grades: kitchen, carpet, paint,
trim and most new windows.
Near park, medical facilities,
RAC. Vicki 541-969-9441cell.
#19082889
Coldwell Banker Whitney &
Associates
541-276-0021
$595,000
Prime residential develop-
ment land w/sweeping views
of the Blue Mountains. Mul-
tiple access points. Property
contains six tax lots totaling
55.95 acres(m/l). Jef 541-969-
9539cell. #19264696
Coldwell Banker Whitney &
Associates
541-276-0021
$450,000
4.16ACRES, W/VIEWS, min-
utes from town.
3633sf(m/l)
home w/daylight basement,
3bedrooms,
2baths.
Fabu-
lous greatroom! Garage, shed.
Zoned for animals. Cari 541-
377-5058cell. #19000883.
Coldwell Banker Whitney &
Associates
504 Hom
$229,500
1level,
6be
2170sf(m/l) ma
w/stick built a
with island an
ed just blocks
Park. Kevin 5
#19082248
Coldwell Ban
Asso
541-2
$265,000
4 bed, 2 bath
2levels. Lowe
kitchen.
Cu
accents exter
ered patio an
BBQ. Jerry 5
#19593858
Coldwell Ban
Asso
541-2
$149,000
Charming 2be
Updated kitche
updated wiring
2years old. D
rage/shop. W
private backyar
9692887cell. #
Coldwell Ban
Asso
541-2
$399,999 – 3 B
Bath Log Hom
Beautiful Log H
cious Upstairs
360 Degree Vi
open floor plan
MLS# 1968140
Rocky
Blue Je