Gillen v. Martini

• Decision Date: 25 March 1971
• Docket Number: Docket No. 9320,No. 2,2
• Citation: 31 Mich.App. 685,188 N.W.2d 43
• Parties: Arlene GILLEN, Plaintiff-Appellee, v. James C. MARTINI and Ann M. Martini, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 43

188 N.W.2d 43

31 Mich.App. 685

Arlene GILLEN, Plaintiff-Appellee, v. James C. MARTINI and Ann M. Martini, Defendants-Appellants.

Docket No. 9320.

Court of Appeals of Michigan, Division No. 2.

March 25, 1971.

Released for Publication July 2, 1971.

Seth R. Burwell, Burwell & Shank, Lansing, for defendants-appellants.

Neil A. McLean, Glassen, Parr, Rhead & McLean, Lansing, for plaintiff- appellee.

Before R. B. BURNS, P.J., and J. H. GILLIS and T. M. BURNS, JJ.

J. H. GILLIS, Judge.

This is a slip and fall case. Plaintiff, Arlene Gillen, brought this action claiming that defendants, James and Ann Martini, were negligent in failing to remove a natural accumulation of ice and snow from the private walkway to their home, and that such negligence was a proximate cause of plaintiff's fall and ensuing injuries. At the nonjury trial, defendants cross-examined plaintiff's witnesses, but offered no proofs and rested their case on a motion for directed verdict. They appeal as of right from the judgment entered for plaintiff.

Plaintiff is an antique dealer. She went to defendants' home to purchase antiques in response to an advertisement in the local Lansing newspaper. A recent storm had left a 3-inch accumulation of snow and ice in the general area and defendants' sidewalk and private walkway were not cleared. Plaintiff testified that she was proceeding slowly on the walkway because she knew it was slippery, when she fell and fractured her arm.

Plaintiff's status as a business invitee is not questioned, and there is ample evidence in the record to sustain the trial court's finding on this issue. See 2 Restatement of Torts 2d, § 332, comment e, p. 179; 2 Harper and James, Law of Torts, § 27.12, p. 1481. Defendants do not dispute the well-settled rule that while a landowner is not an insurer of the invitee's safety, he is under an affirmative duty to exercise due care to make the premises reasonably safe for the invitee's use. Shorkey v. Great Atlantic & Pacific Tea Co. (1932), 259 Mich. 450, 452, 243 N.W. 257; Ruemenapp v. National Food Stores, Inc. (1970), 25 Mich.App. 291, 294, 181 N.W.2d 312; Mills v. A. B. Dick Company (1970), 26 Mich.App. 164, 167, 182 N.W.2d 79. Rather, defendants' argument is that the general duty owed invitees does not include removal of natural accumulations of ice and snow.

In this regard, we note that an abutting property owner may not be held liable to pedestrians for injuries sustained by falling on sidewalks made hazardous by natural accumulations of ice and snow, and statutes and ordinances which impose a duty upon landowners to clean sidewalks create no private liability. Taylor v. Lake Shore & M.S.R. Co. (1881), 45 Mich. 74, 7 N.W. 728; Grooms v. Union Guardian Trust Co. (1944), 309 Mich. 437, 15 N.W.2d 698; Levendoski v. Geisenhaver (1965), 375 Mich. 225, 134 N.W.2d 228. Cases which alter the rule of non-liability to pedestrians do so when artificial conditions cause aggravation of natural hazards. Betts v. Carpenter (1927), 239 Mich. 260, 214 N.W. 96; Weider v. Goldsmith (1958), 353 Mich. 339, 91 N.W.2d 283.

Once the status of invitee is established, plaintiffs have been able to establish the liability of the landowner where the injuries are sustained either in the vestibule of a building, Keech v. Clements (1942), 303 Mich. 69, 5 N.W.2d 570, or on a sloping terrazzo walkway leading from the store to a public sidewalk, DeSmit v. J. C. Penney Company (1963), 369 Mich. 527, 120 N.W.2d 223. Howev...