Berman v. LaRose

• Decision Date: 24 February 1969
• Docket Number: Docket No. 5191,No. 1,1
• Citation: 167 N.W.2d 471,16 Mich.App. 55
• Parties: Violet BERMAN and Daniel Berman, her husband, Plaintiffs-Appellants, v. Leo D. LaROSE, d/b/a Dixfield Super Market, and assumed name, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 471

167 N.W.2d 471

16 Mich.App. 55

Violet BERMAN and Daniel Berman, her husband, Plaintiffs-Appellants, v. Leo D. LaROSE, d/b/a Dixfield Super Market, and assumed name, Defendant-Appellee.

Docket No. 5191.

Court of Appeals of Michigan, Division No. 1.

Feb. 24, 1969.

Released for Publication May 15, 1969.

SYLLABUS BY THE COURT

1. Negligence -- Publicly-Owned Land -- Liability of Adjoining Property Owner -- Elements of Cause of Action.

To establish liability of a defendant store owner for injuries occurring to plaintiff on adjoining publicly-owned land in front of defendant's store, where plaintiff parked her car and fell in a hole on the way to defendant's store, plaintiff would have to show that defendant increased the hazards in the publicly-owned parking area which existed when the injury occurred, or created new hazards on the strip of land or had physically intruded on the land or otherwise had a servitude of the parking area for his private benefit, and thus affected the area's safety; absent such a showing it cannot be said defendant had a duty to alter a hazardous condition on a publicly-owned parking area.

2. Negligence -- Publicly-Owned Lands -- Governmental Immunity.

The state is immune from liability for injuries to plaintiff on publicly-owned land when the injuries occur on an off-road surface between the sidewalk and the road (MCLA 691.1402).

Appeal from Common Pleas Court of Detroit, Julian P. Rodgers, Jr., J.

Leave to Appeal Granted August 5, 1969. See 382 Mich 772.

Bellinson & Doctoroff (Frederick B. Benjamin, of counsel), for plaintiffs.

Eggenberger & Eggenberger (John P. McKinney, of counsel), for defendant.

McGregor, P. J., and Fitzgerald and Cynar,* JJ. All concurred.

Complaint by Violet Berman and Daniel Berman against Leo D. LaRose, operator of Dixfield Super Market, for negligence. Judgment for defendant. Plaintiffs appeal.

Frederick B. Benjamin, Bellinson & Doctoroff, Detroit, for appellant.

John P. McKinney, Eggenberger & Eggenberger, Detroit, for appellee.

Before McGREGOR, P.J., FITZGERALD and CYNAR, ^* JJ.

McGREGOR, Presiding Judge.

The present dispute presents the question of whether a commercial landowner owes a duty to business invitees to keep abutting state-owned property, used for public parking, in a reasonably safe condition. The particular fact situation involved, that of a publicly owned parking area abutting defendant's premises, to our knowledge has not been presented to the American judiciary. The merits of the question will be weighed as presented by the following fact situation:

Defendant owns a retail grocery store and his customers often park their cars an a strip of state-owned land between the road and sidewalk in front of the store. The accident engendering this controversy occurred when plaintiff fell in a hole after parking her car on the land strip, intending to purchase groceries in defendant's store. Thereafter, her husband joined her in an action against defendant for damages allegedly caused by the fall, which included medical bills, pain and suffering, and loss of consortium. The circuit court entered a judgment for defendant, reasoning as follows:

'* * * an adjoining property owner owes no duty to one injured on public property wherein he has not created the nuisance nor allowed an innocent creation to become a nuisance or an unreasonable risk, nor in an endeavor to correct a defect either creates a new hazard or enhances an old hazard.'

Although plaintiff clearly has suffered misfortinue, we have found no basis for her recovery, either from the State or the defendant, as an owner of the abutting premises. State immunity from liability in the exercise of a governmental function applies in the instant matter, especially since the injury occurred off a road surface. P.A.1964, No. 170, § 1 Et seq. (M.C.L.A. § 691.1401 Et seq.; Stat.Ann.1968, Cum.Supp. § 3.996 (101) Et seq.).

Michigan decisions acknowledge the general rule that defendant owes a duty to business invitees to maintain his premises in a reasonable, safe condition. However, there is no duty, absent a statute, of an abutting owner as to the condition of the sidewalk or public way, unless the landowner has physically intruded upon the area in some manner of has done some act which either increased the existent hazard or created a new hazard. Levendoski v. Geisenhaver (1965), 375 Mich. 225, 134 N.W.2d 228; Kinsey v. Lake Odessa Machine Products (1962), 368 Mich. 666, 118 N.W.2d 950; Weider v. Goldsmith (1958), 353 Mich. 339, 91 N.W.2d 283; Betts v. Carpenter (1927), 239 Mich. 260, 214 N.W. 96; City of Detroit v. Chaffee (1888), 70 Mich. 80, 37 N.W. 882. Defendant's premises did not physically intrude on the...