Osman v. Summer Green Lawn Care, Inc.

• Decision Date: 19 April 1995
• Docket Number: Docket No. 166523
• Citation: 209 Mich.App. 703,532 N.W.2d 186
• Parties: Fay OSMAN, Plaintiff-Appellant, v. SUMMER GREEN LAWN CARE, INC., d/b/a Dearborn Snow Plowing, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 186

532 N.W.2d 186

209 Mich.App. 703

Fay OSMAN, Plaintiff-Appellant, v. SUMMER GREEN LAWN CARE, INC., d/b/a Dearborn Snow Plowing,

Defendant-Appellee.

Docket No. 166523.

Court of Appeals of Michigan.

Submitted Nov. 9, 1994, at Detroit.

Decided Jan. 30, 1995.

Approved for Publication April 19, 1995, at 9:10 a.m.

Released for Publication May 24, 1995.

Geno T. Zayid, Southfield, for plaintiff.

Noeske, Tarnavsky & Blanco by Thomas M. Jinks, Troy, for defendant.

Before REILLY, P.J., and BURNS ^* and HORN, ^** JJ.

PER CURIAM.

Plaintiff appeals from a June 29, 1993, order of summary disposition entered in favor of defendant, Summer Green Lawn Care, Inc., in this negligence action. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), claiming that, pursuant to contract, it owed no duty to plaintiff to maintain a clean and nonslippery pavement in a K mart parking lot. We reverse and remand.

This lawsuit arises out of plaintiff's slip and fall in a K mart parking lot on December 9, 1990. Michigan Greenfield Land Company, owner of the premises, contracted with defendant for snow removal services. The contract was in effect at the time of plaintiff's injury. Plaintiff filed a complaint against defendant alleging that defendant owed plaintiff a duty to maintain the premises and the adjacent or abutting areas in a safe condition free from danger and to exercise reasonable care to diminish the hazards of ice, and that such duty further required reasonable and appropriate measures in light of existing and created circumstances. Plaintiff alleged that defendant breached its duty by negligently, carelessly, and recklessly removing snow from the premises and placing it on a portion of the premises when it knew, or should have been known or anticipated, that the snow would melt and freeze into ice on the abutting sidewalk, steps, and walkway, thus posing a dangerous and hazardous condition to individuals who traverse those areas. Plaintiff alleged that defendant was negligent in failing to keep the premises and all common areas fit for their foreseeable uses and in failing to remove ice from areas after notice of the dangerous condition, in allowing ice to build up, in maintaining a hazardous condition when it could have been reasonably discovered, and in failing to remove a dangerous condition.

Defendant claimed that because no genuine issue of material fact existed regarding the duty owed by defendant, defendant was entitled to summary disposition as a matter of law. Defendant argued that although an owner of premises must maintain the property in a reasonably safe condition, the present action seeks to impose a duty for the maintenance of the premises upon a defendant who is not the owner of the premises. Defendant argued that the snow removal agreement between the parties clearly indicated that defendant assumed no duty or responsibilities of the premises owner. Additionally, the contract clearly provides that defendant did not assume any of the responsibility for damage or injury caused by slipping and falling on any pavement surface.

A hearing on the motion was held on June 11, 1993, before the discovery cutoff, which was scheduled for October 31, 1993. At the hearing, plaintiff argued that while defendant was plowing, defendant had control of the premises and defendant's duty arose from this control. Plaintiff claimed that a duty arose because defendant created a hazardous condition that caused plaintiff's injuries. Plaintiff also claimed that because two of the contract's clauses conflicted, the jury should determine which portion of the contract is controlling.

The record is unclear with regard to which section of MCR 2.116 the court based its ruling. The trial court failed to articulate on the record or in its written order its basis for granting the motion. However, both defendant and the trial court relied on documentary evidence beyond the pleadings in support of defendant's motion for summary disposition. Therefore, we must construe defendant's motion as being brought pursuant to MCR 2.116(C)(10).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim and should be granted only when it is impossible for the claim to be supported at trial because of a deficiency that cannot be overcome. In ruling on the motion, the trial court must consider not only the pleadings but also any depositions, affidavits, admissions, or other documentary evidence submitted by the parties. Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985). In deciding such a motion, the court must give the benefit of reasonable doubt to the nonmovant and determine whether a record might be developed that would leave open an issue upon which reasonable minds may differ. Bedker v. Domino's Pizza, Inc., 195 Mich.App. 725, 491 N.W.2d 275 (1992). Before judgment may be granted, the court must be satisfied that it is impossible for the claim to be supported by evidence at trial. Tame v. A.L. Damman Co., 177 Mich.App. 453, 442 N.W.2d 679 (1989). This Court liberally finds a genuine issue of material fact.

Although clumsily arranged, the contract allows only one interpretation. Where written documents are unambiguous and unequivocal, their construction is for the court to decide as a matter of law. Mt. Carmel Mercy Hosp. v. Allstate Ins. Co., 194 Mich.App. 580, 487 N.W.2d 849 (1992). If a contract, however inartfully worded or clumsily arranged, fairly admits of but one interpretation, it may not be said to be ambiguous or, indeed, fatally unclear. The contract, when read as a whole, is not ambiguous. The contract between defendant and Michigan Greenfield Land Company provided, in part, as follows:

Provider assumes no liability for any damage caused to you or your tenant as a result of conditions caused by weather or circumstances which are reasonably beyond Provider's control, including but not limited to your delay in requesting snow plowing or salting.

Due to variables, includeing [sic] but not limited to temperature, compaction, wind drifting or piling, it is impossible to remove accumulated ice and snow to bare pavement. No salt or melting agent will be used without prior direction by you or your authorized agent. Provider does not indemnify or hold you harmless from claims or demands arising directly or indirectly from the condition of the pavement's surface. Provider shall not be responsible for any damage or injury caused by slipping or falling on any pavement surface.

Nothing contained in this agreement shall relieve Provider from liability for its breach of this agreement or damages caused to person or property as a result...