Hampton v. WASTE MGT. OF MICH. INC.

• Citation: 601 N.W.2d 172,236 Mich. App. 598
• Decision Date: 22 October 1999
• Docket Number: Docket No. 206240.
• Parties: Larry Lee HAMPTON, Plaintiff-Appellant, v. WASTE MANAGEMENT OF MICHIGAN, INC., and Northwest Market, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

601 N.W.2d 172

236 Mich. App. 598

Larry Lee HAMPTON, Plaintiff-Appellant, v. WASTE MANAGEMENT OF MICHIGAN, INC., and Northwest Market, Inc., Defendants-Appellees.

Docket No. 206240.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Detroit.

Decided July 23, 1999, at 9:05 a.m.

Released for Publication October 22, 1999.

Bernstein & Bernstein, P.C. (by Michael J. Butler), Southfield, for the plaintiff.

Plunkett & Cooney, P.C. (by Jeffrey C. Gerish), Detroit, for the defendants.

Before: DOCTOROFF, P.J., and SMOLENSKI and WHITBECK, JJ.

PER CURIAM.

Plaintiff Larry Lee Hampton appeals as of right the trial court's order granting summary disposition in favor of defendants Waste Management of Michigan, Inc., and Northwest Market, Inc., pursuant to MCR 2.116(C)(10) in this premises liability case. We affirm.

I. Basic Facts and Procedural History

Hampton alleged in his complaint that, on October 6, 1995, at about 2:15 p.m., he was on Northwest Market's property to inspect a roof on a building adjacent to the property and that a rubbish bin (the dumpster) owned by Waste Management was located on the property. According to the complaint, as Hampton was descending a ladder, "the ladder slipped out from under him as a result of an oily substance leaking from Defendant's [sic— Waste Management's] rubbish bin, thereby causing [Hampton] to fall" and resulting in injury.

Hampton indicated in his deposition testimony that he fell from a ladder on Northwest Market's property and that he "had grease and oily stuff all over [his] hands and face where [he] had hit right there at the bottom of the ladder." Hampton believed that the substance on him leaked out of the dumpster because "there was nothing else in the parking lot [other] than that dumpster."

Another witness, Jerry Wood, testified during his deposition that the ladder "just took off like it was on butter" at the time of the fall. Matt Gunsell, similarly indicated during his deposition that a substance like cooking oil, grease, or Crisco oil got on his clothes when he assisted Hampton after Hampton fell. Wood also described a "greasy film" on Hampton's body or clothes after the fall. Wood testified as follows regarding the dumpster on Northwest Market's premises:

From the dumpster, from it sitting so long. And you could see where all the drainage of anything would come out of the dumpster, whatever it would be.

* * *

Well, when.... After we had called the paramedics and everything, to stand beside the dumpster [sic].... And I do recall this. It was like from one corner to the back of the dumpster to the other corner of the dumpster it looked like it had ... like it was ... just like it was weeping out of it down into ... like it was draining out.

And it looked like a little.... You know, it formed down to like a little river like thing. You know, after something has been sitting so long, you know. It just builds out, then down.

However, no deposition testimony or other documentary evidence presented to the trial court specifically indicated when a substance allegedly leaked from the dumpster or the identity of who may have placed the substance in the dumpster.¹ The trial court stated during a motion hearing with regard to defendants' motion for summary disposition under MCR 2.116(C)(10) as part of its rationale for granting the motion that it thought "this whole case is so speculative that.... You know, you can talk about every case having some question of fact ... I usually do... but in this one, I just ... I just can't do it in good conscience because I really can't see where Northwest [Market] or Waste Management did anything inappropriate." Accordingly, the trial court entered an order granting summary disposition in favor of Waste Management and Northwest Market.

II. Standard of Review

This Court reviews decisions on motions for summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim and is reviewed to determine whether the affidavits, pleadings, depositions, or any other documentary evidence establish a genuine issue of material fact to warrant a trial. Spiek, supra.

On appeal, as below, all reasonable inferences are resolved in the nonmoving party's favor. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 615, 537 N.W.2d 185 (1995).

III. General Principles of Negligence Law

To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993); Swan v. Wedgwood Christian Youth & Family Services, Inc., 230 Mich.App. 190, 195, 583 N.W.2d 719 (1998). Duty can arise from a statute or a contract or by application of the basic rule of common law, which imposes an obligation to use due care or to act so as to not unreasonably endanger the person or property of others. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 95, 485 N.W.2d 676 (1992). If factual questions exist regarding what characteristics giving rise to a duty are present, the issue must be submitted to the factfinder. Howe v. Detroit Free Press, Inc., 219 Mich.App. 150, 155, 555 N.W.2d 738 (1996).

IV. Defendant Waste Management's Lack of Duty Under Premises Liability Law

We may easily dispose of this appeal as regards Waste Management. Although Hampton argues that he was lawfully present on Northwest Market's premises, there is no evidence to suggest that Waste Management possessed or controlled the premises. A claim of premises liability is conditioned on the presence of both possession and control over the premises. Kubczak v. Chemical Bank & Trust Co., 456 Mich. 653, 660, 662, 575 N.W.2d 745 (1998). Therefore, we find, as a matter of law, Waste Management did not owe the requisite duty, Schultz, supra, to Hampton to support his claim against Waste Management. Accordingly, summary disposition of plaintiff's claim in regard to defendant Waste Management was proper.

V. Plaintiff's Claim Against Northwest Market

The duty that a possessor of land owes to another person who is on the land depends on the latter person's status. Stanley v. Town Square Cooperative, 203 Mich.App. 143, 146, 512 N.W.2d 51 (1993). The status of a person on land that the person does not possess will be one of the following: (1) a trespasser, (2) a licensee, or (3) an invitee. Id. at 147, 512 N.W.2d 51. The parties dispute the status held by Hampton when he was on Northwest Market's land at the time of his fall.

However, even if we assume without deciding that Hampton was an invitee entitled to the highest level of protection under premises liability law, Northwest Market would be "`"liable for injury resulting from an unsafe condition either causedby the active negligence of [itself] and [its] employees or, if otherwise caused, where known to the storekeeper or [the condition] is of such a character or has existed a sufficient length of time that [it] should have had knowledge of it."'" Berryman v. K Mart Corp., 193 Mich.App. 88, 92, 483 N.W.2d 642 (1992), quoting Serinto v. Borman Food Stores, 380 Mich. 637, 640-641, 158 N.W.2d 485 (1968), quoting syllabus No. 1 in Carpenter v. Herpolsheimer's Co., 278 Mich. 697, 271 N.W. 575 (1937) (emphasis supplied).

Hampton argues that notice need not be shown where a dangerous condition is caused by a premises possessor or its employees. However, in keeping with the basic tenets of negligence law that require a breach of duty as an essential element of a valid negligence claim, Schultz, supra; Swan, supra,

and the above language from Berryman and Serinto, we conclude that this principle applies only where an employee of a premises possessor creates a dangerous condition through an unreasonable act or omission that breaches a duty owed to a visitor on the land. In other words, that a reasonable act or omission of a premises possessor or its employee plays a role in the creation of a dangerous condition does not make the premises possessor liable for any injury to an invitee that is causally connected to that reasonable act or omission. While this may be so basic as not to have been expressly addressed in prior Michigan case law, this concept is inherent in the well-established principle that a possessor of land "is not an insurer of the safety of an invitee." Stanley, supra at 150, 512 N.W.2d 51. For example, Northwest Market's reasonable act of simply having a parking lot and a building on the land were remote causal factors in this accident. Obviously, that does not serve to impose liability on Northwest Market for any injuries that Hampton suffered in his fall from the ladder because the maintenance of a parking lot and building for business purposes is a reasonable act and thus not a breach of duty toward an invitee.

Similarly, we conclude as a matter of law that there is no evidence to reasonably support a finding that Northwest Market or any of its employees breached any duty to its invitees (or by necessary implication to its licensees or trespassers on its land) by merely having possibly placed a substance in the dumpster that leaked out. Under the circumstances of this case, it may well be highly questionable whether there was sufficient evidence to reasonably support a factual determination that an oily substance leaked from the dumpster to the area where Hampton's ladder rested on the parking lot surface. See, e.g., Berryman, supra at 92, 483 N.W.2d 642 (a prima facie case of negligence may be established with the use of legitimate inferences, but requires more than conjecture).

Nevertheless, even if we presume that the substance did so leak from the dumpster, there is no indication that Northwest Market or any of its employees had any knowledge of material ever leaking from the dumpster in the past. Thus, there was no evidence...