Derbabian v. S & C SNOWPLOWING, INC.
| Decision Date | 14 May 2002 |
| Docket Number | Docket No. 216024. |
| Citation | 644 N.W.2d 779,249 Mich. App. 695 |
| Parties | Robyn DERBABIAN and John Derbabian, Plaintiff-Appellees, v. Mariner's Pointe Associates Limited Partnership, Defendant/Third-Party Plaintiff, and S & C SNOWPLOWING, INC., Defendant/Third-Party Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Law Offices of Samuel I. Bernstein (by Leonard E. Miller), Farmington Hills, for the plaintiffs.
Kallas & Henk, P.C. (by Scott L. Feuer), Bloomfield Hills, for the defendant.
Before: WHITE, P.J., and WILDER and ZAHRA, JJ.
In this premises liability action, defendant S & C Snowplowing, Inc., appeals as of right trial court orders denying defendant summary disposition and entering judgment in favor of plaintiffs Robyn and John Derbabian.1 We reverse the judgment in favor of plaintiff and remand for entry of judgment in favor of defendant pursuant to MCR 2.116(C)(10).
During the winter of 1995-96, defendant and Mariner's Pointe Associates Limited Partnership (Mariner's Pointe) entered into a contract for the removal of snow and ice from the Mariner's Pointe Shopping Center, located in Harrison Township. The contract specified that in exchange for a flat fee, defendant would provide snow removal services in the "parking areas, entrances, receiving areas, etc.," and on "city and tenant (sic) sidewalks." The contract also specified that defendant would salt the parking areas for an extra charge of $90 per ton of salt applied, and that the salt was to be applied "by Contractor discretion." 2 The contract required that all work would "be completed in a professional manner according to standard practices."
On the morning of February 22, 1996, plaintiff arrived at Mariner's Pointe Shopping Center, got out of her vehicle, and began walking toward the Kroger store in the shopping center when she slipped and fell on ice, injuring her left ankle. Discovery evidence revealed that there was no precipitation falling at the time plaintiff fell, but that it had rained for a few hours the day before plaintiff fell. Discovery also established that defendant last plowed the parking lot on February 14, 1996, after a 4½-inch snowfall and that following that snowfall, defendant applied at least eight tons of salt between February 14, 1996, and February 18, 1996. In addition, the discovery process failed to produce any evidence that defendant negligently plowed or salted the parking lot after the February 14, 1996, snowfall or that there was additional snowfall between February 14, 1996, and February 22, 1996. Discovery also established that no one—including plaintiff—had observed the ice patch before the fall, and that the ice covered an area approximately the size of two parking spaces. The record also established that there was no snow present on the surface of the parking lot at the time plaintiff fell.
Plaintiff filed suit against Mariner's Pointe, the owner and operator of the shopping center, alleging, among other things, negligent maintenance of the parking lot and negligent failure to inspect the premises for dangerous conditions. Mariner's Pointe filed a third-party complaint for indemnification or contribution against defendant. Plaintiff then filed an amended complaint that added defendant as a primary defendant. The amended complaint alleged that defendant, along with Mariner's Pointe, "exercis[ed] control over the... parking lots" of Mariner's Pointe at the time of plaintiff's fall and that, on the basis of this control, defendant owed plaintiff a duty to exercise reasonable care to diminish the danger associated with accumulated ice and snow within a reasonable time after its accumulation and to ensure that the parking lot was maintained in a safe condition. Plaintiff also alleged that defendant's negligence in failing to inspect the parking lot for dangerous conditions, and in failing to rectify dangerous conditions that were present, amounted to a breach of defendant's duty to exercise reasonable care.
Defendant moved for summary disposition under MCR 2.116(C)(8) and (10), contending that it was not in possession and control of the parking lot at the time of plaintiff's fall and therefore could not be held liable for plaintiff's injuries under a premises liability theory. Defendant also argued that plaintiff failed to establish a genuine issue of material fact regarding whether defendant created or had knowledge of the ice patch that caused plaintiff's fall. Mariner's Pointe concurred with defendant's argument that neither defendant nor itself had notice of the icy condition.
In response, plaintiff argued that because defendant failed to make reasonable inspections of the parking lot, and therefore could not alleviate the icy condition, defendant failed to exercise reasonable care in the performance of its contractual duties and was therefore negligent. Plaintiff also argued that because defendant entered into a contract with Mariner's Pointe to remove snow and ice and to ensure that the premises were safe, defendant assumed the duty of the premises owner, i.e., Mariner's Pointe, with regard to inspecting the premises for dangerous conditions, and further argued that there was a genuine dispute regarding whether defendant had knowledge of the icy condition. Following oral argument, the trial court concluded that factual issues existed that had to be decided by the jury, and therefore denied defendant's motion in its entirety.
Before trial, plaintiff settled with Mariner's Pointe, and Mariner's Pointe and defendant stipulated to dismiss the third-party action without prejudice. The case then proceeded to trial against defendant. At the close of plaintiff's case, defendant moved for a directed verdict, which the trial court denied. Defendant then rested without calling any additional witnesses.
Following the closing arguments, the jury found defendant ninety percent negligent, plaintiff ten percent negligent, and awarded plaintiff $45,000 for past and present damages. The jury also awarded plaintiff $1,000 annually, from 1999 to 2030, for future damages.3 On the basis of this verdict, the trial court entered a judgment awarding plaintiff and John Derbabian $33,445. This figure was arrived at after reducing the judgment by ten percent to account for plaintiff's comparative negligence and reducing the award to present value and by including taxable costs, mediation sanctions, and interest.
This Court's review of a trial court's grant or denial of a summary disposition motion is de novo. Dressel v. Ameribank, 247 Mich.App. 133, 136, 635 N.W.2d 328 (2001), citing Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). In reviewing a motion under MCR 2.116(C)(10), we consider "the pleadings, affidavits, depositions, admissions, and any other documentary evidence in a light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists that would preclude judgment for the moving party as a matter of law." G.C. Timmis & Co. v. Guardian Alarm Co., 247 Mich.App. 247, 252, 635 N.W.2d 370 (2001), citing Unisys Corp. v. Comm'r of Ins., 236 Mich.App. 686, 689, 601 N.W.2d 155 (1999).
Similarly, we review de novo a trial court's decision regarding a directed verdict. Morinelli v. Provident Life & Accident Ins. Co., 242 Mich.App. 255, 260, 617 N.W.2d 777 (2000); Meagher v. Wayne State Univ., 222 Mich.App. 700, 708, 565 N.W.2d 401 (1997). In reviewing the trial court's decision, we view the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, granting that party every reasonable inference, and resolving any conflict in the evidence in that party's favor to decide whether a question of fact existed. Thomas v. McGinnis, 239 Mich.App. 636, 643-644, 609 N.W.2d 222 (2000); see also Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998); Morinelli, supra.
A directed verdict is appropriate only when no factual question exists on which reasonable jurors could differ. Meagher, supra at 708, 565 N.W.2d 401.
Defendant first argues that because it did not have possession and control of the parking lot when plaintiff fell, it should not be held liable under a premises liability theory. We agree.
To be liable under a premises liability theory, plaintiff must show that defendant was a possessor of the parking lot at the time of plaintiff's injury. Our Supreme Court has defined a "possessor" of land as:
See also Orel v. Uni-Rak Sales Co., Inc., 454 Mich. 564, 569, 563 N.W.2d 241 (1997).
To determine whether defendant was a possessor of the parking lot, it is necessary to determine the meaning of the terms "possession" and "control" as used in the definition of "possessor." Neither of these words has previously been defined by Michigan case law; accordingly, relevant dictionary definitions may be consulted in order to determine the plain meaning of these terms. Oakland Co. Bd. of Co. Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 604, 575 N.W.2d 751 (1998); Michigan Millers Mut. Ins. Co. v. Bronson Plating Co., 445 Mich. 558, 568, 519 N.W.2d 864 (1994); Hoover Corners, Inc. v. Conklin, 230 Mich. App. 567, 572, 584 N.W.2d 385 (1998).
Black's Law Dictionary (7th ed.) defines "possession,"...
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...case because they did not proximately cause the injuries that occurred at defendant's store. Plaintiff relies on Derbabian v. S & C Snowplowing, Inc., 249 Mich. App. 695 (2002), Jones v. Enertel, Inc., 254 Mich. App. 432 (2002) (per curiam), and Romain v. Frankenmuth Mut. Ins. Co., 483 Mich......