Altairi v. Alhaj, Docket No. 203221.

• Decision Date: 30 August 1999
• Docket Number: Docket No. 203221.
• Citation: 599 N.W.2d 537,235 Mich. App. 626
• Parties: Abdul ALTAIRI, Plaintiff-Appellant, v. Ahdulilah Ali ALHAJ, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

599 N.W.2d 537

235 Mich. App. 626

Abdul ALTAIRI, Plaintiff-Appellant, v. Ahdulilah Ali ALHAJ, Defendant-Appellee.

Docket No. 203221.

Court of Appeals of Michigan.

Submitted January 6, 1999, at Detroit.

Decided May 28, 1999, at 9:05 a.m.

Released for Publication August 30, 1999.

Rickel & Baun, P.C. (by Mark A. Baun), Grosse Pointe Farms, for the plaintiff.

Draugelis & Ashton, L.L.P. (by Floyd C. Virant), Plymouth, for the defendant.

Before: HOEKSTRA, P.J., and DOCTOROFF and O'CONNELL, JJ.

HOEKSTRA, P.J.

In this slip and fall case, plaintiff appeals an order granting defendant summary disposition under MCR 2.116(C)(10). The trial court held that defendant, a private landowner, owed no duty to plaintiff to warn him of naturally accumulated ice and snow on the front steps of defendant's home. While we do not agree that the "natural accumulation doctrine" bars plaintiff's claim, we affirm the trial court's judgment on other grounds.

Defendant and plaintiff were acquaintances. One day, after a chance meeting in the community, defendant invited plaintiff to his home for coffee. Defendant drove plaintiff to his home, which they entered through a side door. After a time, plaintiff asked defendant to drive him home. Rather than leave through the side door, defendant led plaintiff to the front door and opened it for him. As defendant turned to lock the door, plaintiff started down the snow-covered steps. Suddenly, he slipped and fell on ice that lay under the snow.

Plaintiff sued, alleging that defendant breached his duty to plaintiff as a licensee by not warning him about the ice under the snow. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that he was insulated from liability by the natural accumulation doctrine. The trial court applied the doctrine and granted the motion, finding that defendant had altered neither the natural accumulation of ice and snow nor the steps themselves.

A grant or denial of a motion for summary disposition is reviewed de novo on appeal. Michigan Mut. Ins. Co. v. Dowell, 204 Mich.App. 81, 86, 514 N.W.2d 185 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. Dowell, supra at 85, 514 N.W.2d 185. The trial court must consider the pleadings, affidavits, admissions, and other documentary evidence submitted by the parties and, giving the benefit of reasonable doubt to the nonmoving party, must determine whether a record could be developed leaving an issue on which reasonable minds might differ. Id. The nonmoving party must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists and cannot simply rest on mere conjecture and speculation to meet the burden of providing evidentiary proof establishing a genuine issue of material fact. Libralter Plastics, Inc. v. Chubb Group of Ins. Cos., 199 Mich.App. 482, 485-486, 502 N.W.2d 742 (1993).

While we disagree with the trial court's use of the natural accumulation doctrine as the basis for summary disposition, we uphold the judgment because plaintiff has not shown that reasonable minds could differ regarding whether defendant knew or had reason to know that there was ice under the snow.

I. The Natural Accumulation Doctrine

The trial court in this case ruled that plaintiff's claim was barred by the natural accumulation doctrine. Defendant argues that the doctrine protects a private possessor of land from liability for injuries to licensees caused by naturally accumulated ice or snow on a possessor's property. However, plaintiff argues, and we agree, that the doctrine was never meant to apply to injuries on private property. Courts have consistently applied the doctrine to shield private possessors from liability stemming from the natural accumulation of ice and snow on public sidewalks that abut their property. However, while its evolution has rendered the doctrine's scope somewhat ambiguous, the doctrine does not abrogate a private possessor's duty to licensees on his property. Our holding today does not overturn existing law concerning the natural accumulation doctrine. Rather, by examining the doctrine's historical basis along with our Supreme Court's reasoning in Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 260, 235 N.W.2d 732 (1975), we simply clarify its proper scope. Indeed, as discussed below, our holding is consistent with the cases the dissent claims we are overruling.

Our Supreme Court applied the doctrine as early as 1885 in McKellar v. Detroit, 57 Mich. 158, 23 N.W. 621, 58 Am.Rep. 357 (1885). In that case, the plaintiff slipped on "a small ridge of ice formed by the trampling of snow" while using a city-maintained crosswalk. The question in the case was whether a statute providing a cause of action for a municipality's failure to keep public highways, streets, bridges, crosswalks, and culverts in good repair allowed the plaintiff to recover damages.¹ Id. at 159, 23 N.W. 621. The McKellar Court observed that the "natural meaning of the act ... [was] to create liability only for having ways out of repair and defective on that account." Id. at 160, 23 N.W. 621. After determining that the statute did not refer to natural obstructions such as ice or snow, the Court noted that such cases were best decided on negligence principles. However, while municipalities are empowered to clear their streets, the Court declined to find that they had a duty, for tort purposes, to do so. The Court reasoned that such a duty was unreasonable given the magnitude of the task:

Most communities may be relied on to do what is necessary and feasible. But no amount of diligence can supply an adequate force and adequate means to detect the inevitable accumulations of snow trampled into hardness on every cross-walk or in every roadway. [Id. at 162, 23 N.W. 621.]

Furthermore, the Court noted:

It is possible that some legal duty ought to exist for clearing off such ridges as they are raised by the feet of passengers; but to provide for it by means which will be reasonable and not oppressive on the many towns and municipalities throughout the State will be a task of some difficulty. We are satisfied no such liability has thus far been provided for. [Id. at 163, 23 N.W. 621.]

The Court's holding frees only municipalities from liability, and it does so in light of the monumental task of ensuring that every walkway and road is properly cleared of snow. It is not, as defendant implies, the status of the obstruction—natural or artificial—that frees one from liability; rather, liability hinges on whether the encumbered pathway is public or private.

In Hampton v. Master Products, Inc., 84 Mich.App. 767, 270 N.W.2d 514 (1978), we held that "[t]he mere presence of snow or ice on a highway, street, or walk in wintertime, which causes travelers difficulty, does not constitute negligence on the part of the public authorities." Id. at 770, 270 N.W.2d 514. In that case, the plaintiff slipped and fell on a public sidewalk while trying to wade through a snowdrift. She sued the municipality under M.C.L. § 691.1402; MSA 3.996(102), which requires governmental agencies to maintain highways in "reasonable repair so that it is reasonably safe and convenient for public travel."² We upheld the municipality's liability because the accumulation of snow was unnatural, having likely resulted from the plowing of an adjacent street. Hampton, supra at 772, 270 N.W.2d 514.

We also recognized the doctrine in Taylor v. Saxton, 133 Mich.App. 302, 349 N.W.2d 165 (1984). In that case we noted that "landowners owe no duty to pedestrians to clear the public sidewalk of natural accumulations of ice and snow" and held that a municipal ordinance requiring the occupant of property that abuts a public sidewalk to keep it clear of ice and snow "creates a public duty for which there is no private right of action." Id. at 306, 349 N.W.2d 165.³

Both Hampton and Taylor were cited by this Court in Zielinski v. Szokola, 167 Mich.App. 611, 615, 423 N.W.2d 289 (1988), as authority for the following formulation of the natural accumulation doctrine:

The general rule with regard to the liability of a municipality or property owner for injuries sustained by a licensee as a result of icy conditions is stated in a doctrine known as the natural accumulation doctrine. The doctrine provides that neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location. Hampton v. Master Products, Inc., 84 Mich.App. 767, 270 N.W.2d 514 (1978); Taylor v. Saxton, 133 Mich.App. 302, 349 N.W.2d 165 (1984).

The broad language of the Zielinski Court's formulation should be interpreted within the factual context of the case. In Zielinski, the plaintiff slipped on a municipal sidewalk while leaving the defendant's barber shop. The case concerned a business invitee injured on a public sidewalk abutting the business, not a licensee on private property. Zielinski supra at 620, 423 N.W.2d 289. To the extent that Zielinski appears to hold that the natural accumulation doctrine precludes a possessor's liability for injuries sustained by a licensee on private property, the holding is dictum.

Neither Hampton nor Taylor, the cases cited by the Zielinski panel, stand for such a broad formulation of the doctrine. Rather, they concern only liability under municipal statutes or ordinances for failing to keep public walks clear of ice and snow.⁴ Neither case states the duty a private possessor owes his licensees regarding natural hazards on the private property.

Defendant and the dissent argue that our Supreme Court's decision in Quinlivan, supra at 260-261, 235 N.W.2d 732, preserved the natural accumulation doctrine as it applied to injuries sustained by a licensee on private property. In that case, the Court noted that the doctrine conflicted with the rigorous duty normally owed to a possessor's...