Hampton v. Master Products, Inc., Docket No. 77-3103

• Decision Date: 18 July 1978
• Docket Number: Docket No. 77-3103
• Citation: 270 N.W.2d 514,84 Mich.App. 767
• Parties: Dolly M. HAMPTON, Plaintiff-Appellee, v. MASTER PRODUCTS, INC., Defendant, and The Village of Yale, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 514

270 N.W.2d 514

84 Mich.App. 767

Dolly M. HAMPTON, Plaintiff-Appellee, v. MASTER PRODUCTS, INC., Defendant and The Village of Yale, Defendant-Appellant.

Docket No. 77-3103.

Court of Appeals of Michigan.

July 18, 1978.

Rehearing Denied Aug. 24, 1978.

Released for Publication Oct. 20, 1978.

Bush, Luce, Henderson, Black & Bankson by Milton W. Bush, Jr., Port Huron, for defendant-appellant.

Cummings, Monaghan, Thomas & McColl by John B. McNamee and John C. McColl, Port Huron, for plaintiff-appellee.

Davidson, Gotshall, Kohl, Nelson, Secrest, Wardle & Lynch by George F. Clark, Detroit, for Master Products, Inc.

Before MAHER, P. J., and J. H. GILLIS and McGREGOR, ^* JJ.

PER CURIAM.

Defendant Village of Yale appeals a jury verdict awarding $55,000 to plaintiff Dolly Hampton. Plaintiff is a deaf mute who slipped on a snowbank formed on a sidewalk located in front of defendant Master Products' building. The sidewalk in question is located in the Village of Yale. As to Master Products, Inc., a verdict of no cause of action was returned. Defendant Village of Yale appeals as of right.

In her complaint plaintiff alleged that "the Village of Yale was under a duty to keep the sidewalks in a condition safe for public travel. The Village failed to do so and allowed a public nuisance to remain and cause the sidewalk to become hazardous to public travel."

Plaintiff's exhibits clearly showed a snowbank as it covered the sidewalk. She testified that as she walked over the drift (she did not walk in the street because there were cars parked in that area) she sank into the snow, lost her balance and fell against the fence on the sidewalk. She was diagnosed as having an impacted fracture of her wrist.

The Village of Yale's duty to maintain highways is governed by M.C.L. § 691.1402; M.S.A. § 3.996(102), which provides

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency."

M.C.L. § 691.1401(e); M.S.A. § 3.996(101)(e) defines highway to include sidewalks such as the one involved in this case.

The 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. A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes. Mayo v. Village of Baraga, 178 Mich. 171, 144 N.W. 517 (1913). See also Wesley v. Detroit, 117 Mich. 658, 76 N.W. 104 (1898), and Johnson v. Pontiac, 276 Mich. 103, 267 N.W. 795 (1936).

When, however, the accumulation of ice and snow is the result of unnatural causes, the municipality may be liable. In order to render a municipality liable, the interference with travel must be unusual or exceptional, that is, different in character from conditions ordinarily and generally brought about by winter weather in a given locality. 39 Am.Jur.2d, Highways, Streets and Bridges, § 506, p. 906.

In Pappas v. Bay City, 17 Mich.App. 745, 170 N.W.2d 306 (1969), the plaintiff slipped on ice that had accumulated in a depression in a sidewalk. This Court referred to it as "an unnatural accumulation of ice". 17 Mich.App. at 753, 170 N.W.2d 306. Consequently, it was held to be a jury question as to whether the defendant city discharged its duty to keep the sidewalk in reasonable repair.

Earlier, in Johnson v. Marquette, 154 Mich. 50, 117 N.W. 658 (1908), the Supreme Court had called attention to the consequences of an unnatural accumulation.

"We do not think it open to serious question that there was evidence in this case that at this crossing there was an Unnatural accumulation of snow and ice occasioned by shoveling from the railroad track so as to produce a hump on either side of the track of several inches depth; thus increasing the height of the bank on either side. We think it was at least a question for the jury as to whether this left the highway in a condition reasonably safe and fit for travel. It is true that the natural accumulations of snow and ice and the natural results of traveling on the same do not of themselves make a case of faulty highway which justifies a jury in finding a municipality in fault. But that is not this case, as the evidence was ample to show that snow was thrown and piled on this highway in such a manner as to make an unnatural hump or ridge on either side of the track." 154 Mich. at 53-54, 117 N.W. at 659.

Whether this condition was the proximate cause of the injury was, the Court said, a question properly left to the jury.

Perl v. Cohodas, Peterson, Paoli, Nast Co., 295 Mich. 325, 294 N.W. 697 (1940), states simply the test for a municipality's liability for injuries from snow or ice upon its sidewalks:

"In such cases the criterion is whether the danger was caused by natural or unnatural and artificial conditions." 295 Mich. at 335, 294 N.W. at 701.

The Court's opinion then notes that if the conditions were unnatural, the municipality can be held liable.

The accumulation of snow in the present case must be termed unnatural. Exhibits revealed that the snowbank was much higher than any snow surrounding it; indeed, most of the pavement nearby was bare. Testimony, never contradicted or denied by the Village of Yale, suggested that the village had plowed the street adjacent to the sidewalk. A jury could reasonably infer from this that the village was responsible for the unnatural accumulation of snow. ¹

This unnatural accumulation created an obstruction on the sidewalk which should have been removed so that the village could fulfill its duty of keeping the highways "reasonably safe and convenient for public travel". M.C.L. § 691.1402; M.S.A. § 3.996(102). The village was liable for injuries caused by its negligent failure to remove the obstruction after it had notice thereof. Kowalczyk v. Bailey, 379 Mich. 568, 153 N.W.2d 660 (1967).

"It is our conclusion, therefore, that that statute (similar in all relevant parts to the statute in the instant case) imposed upon cities liability for injuries caused by their negligent failure to remove obstructions in their streets after notice thereof." 379 Mich. at 572, 153 N.W.2d at 662.

See also Reich v. State Highway Dep't, 386 Mich. 617, 194 N.W.2d 700 (1972).

By and large, the duty resting on municipalities to remove accumulations of ice and snow from their sidewalks is a qualified one, and becomes imperative only when artificial formations or obstacles have been created and notice of their existence has been received by the municipalities. This notice may be actual or constructive, but actual notice is no more effective than constructive notice. 19...