Bard v. Weathervane of Michigan

• Decision Date: 17 January 1974
• Docket Number: No. 2,Docket No. 16549,2
• Citation: 51 Mich.App. 329,214 N.W.2d 709
• Parties: Sharon BARD and Allen Bard, husband and wife, Plaintiffs-Appellants, v. WEATHERVANE OF MICHIGAN, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 709

214 N.W.2d 709

51 Mich.App. 329

Sharon BARD and Allen Bard, husband and wife, Plaintiffs-Appellants, v. WEATHERVANE OF MICHIGAN, Defendant-Appellee.

Docket No. 16549.

Court of Appeals of Michigan, Division No. 2.

Jan. 17, 1974.

Released for Publication Feb. 19, 1974.

Camille Sam Abood, Abood, Abood & Abood, P.C., Lansing, for plaintiffs appellants.

John L. Collins, Foster, Lindemer, Swift & Collins, Lansing, for defendant appellee.

Before QUINN, P.J., and HOLBROOK and PETERSON*, JJ.

QUINN, Presiding Judge.

January 27, 1972, plaintiffs drove to defendant's shop in Okemos, Michigan to purchase a new pair of ski gloves for Mrs. Bard. They parked their automobile in defendant's parking lot as near to the shop entrance as was possible. The parking lot was well lighted but it was icy and rutted from prior accumulation of snow and traffic. A light snow was falling on the evening in question. These conditions were known to plaintiffs, and because of this, Mrs. Bard walked slowly and watched the ground as she proceeded to the shop entrance. Approximately half way from the automobile to the entrance, she slipped and fell on the ice, breaking her ankle.

This action based on the alleged negligence of defendant in failing to maintain its parking lot in a reasonably safe condition followed. At trial, when plaintiffs rested, defendant's motion for directed verdict was granted and plaintiffs appeal.

The controlling issue has not been accurately stated by either party. We believe a precise statement of that issue is: What duty does the operator of a business owe to invitees of the business with respect to the icy, rutted condition of the business parking lot arising from traffic on natural accumulation of snow?

Plaintiffs argue that the duty owed is properly stated in Kroll v. Katz, 374 Mich. 364, 371, 132 N.W.2d 27, 30 (1965). We cannot accept this argument for two reasons. Kroll did not involve a slip and fall on a natural accumulation of ice and snow. Secondly, Kroll states the basic duty of an invitor to an invitee which we find to be inapplicable to the case before us, which involves a hazard created by natural elements.

Snow falls on invitor, invitee and all residents of the snow area alike. All are, or should be, aware of the hazards arising from natural accumulations of snow such as icy conditions and ruts from traffic. These are common wintertime hazards to all who live in areas where snow accumulates, and these hazards, without more, give rise to no duty owed by an invitor to an invitee.

Given the conditions that existed in this case, what was the duty that defendant owed to plaintiffs? It was to not increase these natural hazards or create a new hazard by any affirmative act, Weider v. Goldsmith, 353 Mich. 339, 91 N.W.2d 283 (1958). We find nothing in this record to indicate that defendant violated this duty.

The record discloses that Mrs. Bard was aware of the dangerous condition of defendant's parking lot and that she chose to use it. This obviates discussion of plaintiffs' claim that defendant owed a duty to warn plaintiffs of the dangerous condition.

Affirmed with costs to defendant.

HOLBROOK, Judge (dissenting).

This writer agrees with Judge Quinn's statement of facts except in certain particulars. A jury trial was held on the cause described by my brother, but the trial judge granted defendant's motion for a directed verdict after Sharon Bard had testified, and after an offer of proof was made by plaintiffs' attorney on their behalf. Plaintiffs had not actually rested their case, but only suspended it, all parties apparently agreeing that further elucidation of the facts would be irrelevant if they could not agree on the standard of due care owed to plaintiffs by the defendant. Thus, this writer cannot agree that the record irreversibly binds us to the conclusion that Mrs. Bard was aware of the dangerous condition of the defendant's parking lot. Although Mrs. Bard did testify that she thought the parking lot condition was dangerous, perhaps had plaintiffs completed their proofs they would have shown that the term 'dangerous' was used in a relative sense in that all snow and icy parking lots are 'dangerous' if one walks without due care. In any case, this writer does not agree with my brother that the record obviates discussion of plaintiffs' claim that defendant owed a duty to warn plaintiffs of the dangerous condition of the parking lot or that only a duty to warn was owed. Therefore, it is necessary to proceed to analyze the legal basis of the trial judge's directed verdict.

The trial judge granted defendant's motion for a directed verdict on the grounds that Gillen v. Martini, 31 Mich.App. 685, 188 N.W.2d 43 (1971), maintains that no duty of due care is owed by the defendant to protect the plaintiffs against injury from the natural accumulation of ice and snow on defendant's parking lot. However, Gillen, as well as all other Michigan cases relevant on this point that defendant cites on appeal, concerned a fall on an icy Sidewalk. See Mayo v. Village of Baraga, 178 Mich. 171, 144 N.W. 517 (1913); McKellar v. Detroit, 57 Mich. 158, 23 N.W. 261 (1885); Rolf v. Greenville, 102 Mich. 544, 61 N.W. 3 (1894); Pringle v. Detroit, 152 Mich. 445, 116 N.W. 362 (1908); Jefferson v. Sault Ste. Marie, 166 Mich. 340, 130 N.W. 610 (1911); Black v. Manistee, 107 Mich. 60, 64 N.W. 868 (1895); Johnson v. Pontiac, 276 Mich. 103, 267 N.W. 795 (1936). See, also, Whinnen v. 231 Corp., 49 Mich.App. 371, 212 N.W.2d 297 (1973). But Cf. Jeswald v. Hutt, 15 Ohio St.2d 224, 239 N.E.2d 37 (1968); Kalicki v. Beacon Bowl, Inc., 143 Ind.App. 132, 238 N.E.2d 673 (1968); Luebeck v. Safeway Stores, Inc., 152 Mont. 88, 446 P.2d 921 (1968); Osborn v. Lamsdowne, 28 Del.Co. 286 (Pa.1938), which deny liability in parking lot situations. Moreover, the Gillen Court cited only non-parking lot cases in support of its holding. See Taylor v. Lake Shore & M.S.R. Co., 45 Mich. 74, 7 N.W. 728 (1881); Grooms v. Union Guardian Trust Co., 309 Mich. 437, 15 N.W.2d 698 (1944); Levendoski v. Geisenhaver, 375 Mich. 225, 134 N.W.2d 228 (1965); Perl v. Cohodas, Peterson, Paoli, Nast Co., 295 Mich. 325, 294 N.W. 697 (1940). From a purely factual standpoint then all of the legal authority placed before this Court and the trial judge by the defendant is distinguishable.

From a purely legal standpoint the Gillen case appears even weaker authority for the decision reached below. Gillen relied for its holding on Perl, supra, at 334--335, 294 N.W. at 701 quoting from Perl at 31 Mich.App. 687--688, 188 N.W.2d 44--45 as follows:

"Most of the cases involving ice and snow concern actions against municipalities for such accumulations on sidewalks. However, The standard of duty of the municipality to those who use its streets and sidewalks is the same as that of the owner or occupier of premises to an invitee.

"In such cases the criterion is wheter the danger was caused by natural or unnatural and artificial conditions." (Emphasis in original.)

While this language from Perl would suggest that the owner or operator of a parking lot is not responsible to business invitees for the injuries caused by the natural accumulation of ice and snow, Perl concerned a fall on icy Steps, not on a sidewalk. Furthermore, the Perl Court, after stating what was quoted above in Gillen, asserted at 295 Mich. 335, 294 N.W. 701:

'The foregoing observations and authorities are referred to only by way of analogy. We are not here concerned with the question of liability of a municipality for injuries resulting from the formation of ice on its streets.'

The Court in Perl also quoted approvingly from Great Atlantic & Pacific Tea Co. v. McLravy, 71 F.2d 396, 397 (C.A.6, 1934):

"It is unquestionably the law that a storekeeper owes to his customers the duty of exercising reasonable care to keep his premises and access thereto in a safe condition for their use, and upon the evidence we do not think that appellant was entitled to a directed verdict upon either of the grounds urged."

Thus, it is clear that the Perl case is not authority for the Gillen holding, but rather is authority for the proposition that a landowner has the responsibility to exercise due care to keep his premises and access thereto in a safe condition for their use by business invitees. This proposition is not, of course, a new one. It has been phrased as a basic tort rule one way or another by most tort law authorities. See, e.g., 2 Restatement Torts, 2d, § 343, p. 215; Prosser, Torts (3d ed.), § 64, p. 394 et seq.; 2 Harper & James, Law of Torts, §§ 27.12--27.14, pp. 1478--1505.

The Gillen Court apparently felt that it was bound by the long line of icy sidewalk cases cited above. The apparent rationale behind these cases was that the duty to maintain public streets and sidewalks is a municipal obligation and that ordinances transferring that duty to private owners created no private liability. See Levendoski, ...