Buffa v. Dyck

• Decision Date: 06 December 1984
• Docket Number: Docket No. 71207
• Citation: 137 Mich.App. 679,358 N.W.2d 918
• Parties: Louise BUFFA and Henry Buffa, Plaintiffs-Appellants, v. Helene DYCK, Defendant-Appellee. 137 Mich.App. 679, 358 N.W.2d 918
• Court: Court of Appeal of Michigan — District of US

Page 918

358 N.W.2d 918

Louise BUFFA and Henry Buffa, Plaintiffs-Appellants, v. Helene DYCK, Defendant-Appellee.

Docket No. 71207.

137 Mich.App. 679, 358 N.W.2d 918

Court of Appeals of Michigan.

Submitted April 10, 1984.

Decided July 19, 1984.

Released for Publication Dec. 6, 1984.

[137 MICHAPP 680] Gagleard, Addis, Imbrunone & Gagleard, P.C. by Michael A. Gagleard, Troy, for plaintiffs-appellants.

Martin, Bacon & Martin, P.C. by Stuart A. Fraser, Mount Clemens, for defendant-appellee.

Before HOOD, P.J., and KELLY and LIVO ^*, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of summary judgment in favor of defendant. Defendant filed her motion under both G.C.R. 1963, 117.2, subds. (1) and (3), and the trial court appeared to decide the motion under G.C.R. 1963, [137 MICHAPP 681] 117.2(1), holding that "no factual development could possibly justify a right to recovery". In its opinion, however, the trial court relied upon facts developed by the parties on discovery and not alleged in the complaint, an improper basis in deciding a motion for summary judgment under G.C.R. 1963, 117.2(1). Blake v. Consolidated Rail. Corp., 129 Mich.App. 535, 543, 342 N.W.2d 599 (1983). We thus review the trial court's decision under GCR 1963, 117.2(3) and consider whether there is a genuine dispute as to any material issue of fact and, if not, whether any factual development could possibly justify plaintiff's claim. Anderson v. Kemper Ins. Co., 128 Mich.App. 249, 252-253, 340 N.W.2d 87 (1983).

According to the facts viewed in a light most favorable to plaintiffs, Louise Buffa (plaintiff) slipped and fell on February 4, 1981, while walking on a public sidewalk abutting defendant's personal residence. Approximately four inches of snow had fallen on February 1st and 2nd, 1981, and, in clearing the snow from the sidewalk, defendant had followed the traditional practice of piling the shoveled snow along both sides of the walk. By February 4, 1981, some of the snow had melted and flowed back onto a portion of the sidewalk. The melted snow subsequently froze causing an icy condition. Plaintiff, 68 years old at the time, slipped and fell on this patch of ice, severely and permanently injuring her hip.

The general rule is that property owners have no duty to maintain public sidewalks abutting their property free from the natural accumulation of ice and snow. Elam v. Marine, 116 Mich.App. 140, 142, 321 N.W.2d 870 (1982). Plaintiff, however, relies upon two exceptions to the rule, the first being the increased hazard exception developed in Weider v. Goldsmith, 353 Mich. 339, 91 N.W.2d 283 [137 MICHAPP 682] (1958), Woodworth v. Brenner, 69 Mich.App. 277, 244 N.W.2d 446 (1976), Mendyk v. MESC, 94 Mich.App. 425, 288 N.W.2d 643 (1979), and Stamatakis v. The Kroger Co., 121 Mich.App. 281, 328 N.W.2d 554 (1982), lv. den. 417 Mich. 1014 (1983). Under this exception, a landowner whose property abuts a public sidewalk is liable for slip and fall injuries occurring on that sidewalk where he or she has taken some action to clear the walk of ice and snow and where that action has increased the hazard of travel over the sidewalk. However, any increased danger cannot be the direct result of natural forces. Mendyk, supra, pp. 434-435. Thus, where an abutting property owner clears away snow from a public sidewalk and natural forces such as melting and freezing subsequently cause icy conditions, liability will not attach. Weider, supra; Woodworth, supra. Where, however, the icy condition is caused by some unnatural force, such as the placing of salt on the cleared sidewalk, liability may attach. Mendyk, supra.

In this case, there is no dispute but that the icy patch upon which plaintiff fell was directly caused by the natural forces of melting and freezing. In fact, plaintiff alleges negligence in defendant's failure to apply salt, gravel or sand to the sidewalk, thus taking this case outside the Mendyk exception. We affirm the trial court's grant of summary judgment for failure of plaintiff to state or establish facts which would allow recovery under the increased hazard exception.

Plaintiff also relies upon a second exception to the no liability rule and alleges that defendant took affirmative steps to alter the condition of the sidewalk itself thus causing an unnatural...