Lundy v. Groty

• Decision Date: 22 May 1985
• Docket Number: Docket No. 75122
• Parties: Gertrude LUNDY, Plaintiff-Appellant, v. Judith GROTY, Defendant-Appellee. 141 Mich.App. 757, 367 N.W.2d 448
• Court: Court of Appeal of Michigan — District of US

Page 448

367 N.W.2d 448

Gertrude LUNDY, Plaintiff-Appellant, v. Judith GROTY, Defendant-Appellee.

Docket No. 75122.

141 Mich.App. 757, 367 N.W.2d 448

Court of Appeals of Michigan.

Submitted Dec. 12, 1984.

Decided April 2, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 758] James C. Lucas, Lansing, for plaintiff-appellant.

Fraser, Trebilcock, Davis & Foster, P.C. by Brett J. Bean, Lansing, for defendant-appellee.

Before BEASLEY, P.J., and R.B. BURNS and S.C. GARDNER ^*, JJ.

GARDNER, Judge.

Plaintiff filed a negligence action alleging that defendant's failure to maintain her driveway in a reasonably safe condition free from snow and ice caused plaintiff to fall and injure her left arm and wrist. In response defendant filed a motion for summary judgment under GCR 117.2(3) claiming there were no genuine issues of material fact and that she was therefore entitled to judgment as a matter of law. The trial court granted defendant's motion and plaintiff moved for reconsideration, which was denied. Plaintiff appeals the denial of reconsideration as of right and defendant has filed a motion to affirm.

[141 MICHAPP 759] The parties do not dispute the following facts. On March 13, 1980, plaintiff, a 70-year-old woman, worked for defendant as a housekeeper and babysitter. A snowstorm had begun the previous night, and as a result snow and ice had accumulated on defendant's driveway. Snow was still falling when plaintiff arrived for work at approximately 12 noon. Defendant's driveway had not been shoveled or salted and was completely covered by snow. Plaintiff parked her car in the driveway, stepped out of the car, slipped and fell.

The trial court, after examining Quinlivan v. The Great Atlantic & Pacific Tea, Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975), held that Michigan law did not require that a business invitor remove snow as it is falling in order to avoid liability to business invitees. The trial court interpreted the Quinlivan holding that a business invitor is to take "reasonable measures * * * within a reasonable time after an accumulation of ice and snow" to mean that a legal duty to plaintiff did not arise until after all of the snow had fallen. This view is not compatible with existing Michigan law.

The trial court decides questions of duty, general standard of care and proximate cause. Questions of cause in fact and specific standard of care are reserved for the jury, Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977).

In the instant case, plaintiff is a business invitee on defendant's property. 2 Restatement Torts, 2d, Sec. 332, comment j, pp. 180-181. The duty owed to a business invitee is as follows:

"A possessor of land is subject to liability to physical harm caused to his invitees by a condition on the land if, but only if, he:

"a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves [141 MICHAPP 760] an unreasonable risk of harm to such invitees, and

"b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

"c) fails to exercise reasonable care to protect them against the danger." 2 Restatement Torts, 2d, Sec. 343, pp. 215-216. See also Torma v. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149 (1953).

Recognizing the principles set forth in the Restatement, the Court in Quinlivan, supra, overruled the natural accumulation rule that had allowed an invitor to be free from responsibility for any hazards due to a natural accumulation of ice and...