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Thomas v. Kenneth12/18/1997
nix City Code, which concerns "Street and Sidewalk Vending." See Phoenix, Ariz., City Code, Streets and Sidewalks, art. II, § 31-22 (Supp. 1996). This expansive definition, if applicable, includes the unimproved right-of-way abutting Defendants' property.
The ordinance invoked by Plaintiffs, however, does not impose a duty of repair upon a landowner or possessor abutting any "sidewalk," broadly defined. To the contrary, as Defendants pointed out in oral argument, the duty of repair set forth in § 31-54 extends only to "the owner or the lessee of any lot or parcel abutting upon any sidewalk now or hereafter constructed." (emphasis added). A duty limited to possessors abutting "constructed" sidewalks does not extend to possessors abutting unimproved right-of-ways. Cf. Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982) (A statutory "expression of one or more items of a class indicates an intent to exclude all items of the same class which are not expressed."). For such unimproved right-of-ways, the common law remains in effect. See Carrow Co. v. Lusby, 167 Ariz. 18, 21, 804 P.2d 747, 750 (1990) ("Statutes are not to be construed as effecting any change in the common law beyond that which is clearly indicated.").
Because Defendants did not owe Thomas a duty to repair or warn of the condition of the unimproved right-of-way abutting their property, we affirm the trial court's grant of Defendants' motion for summary judgment and its denial of Plaintiffs' motion for a new trial.
NOEL FIDEL, Presiding Judge
CONCURRING:
RUDOLPH J. GERBER, Judge
JON W. THOMPSON, Judge
Page 1 2 Arizona Personal Injury Attorneys
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