Mendyk v. Michigan Employment Sec. Commission

• Decision Date: 19 December 1979
• Docket Number: Docket No. 78-3657
• Parties: Lorraine MENDYK, Plaintiff-Appellant, v. The MICHIGAN EMPLOYMENT SECURITY COMMISSION, State of Michigan, Defendant-Appellee. 94 Mich.App. 425, 288 N.W.2d 643
• Court: Court of Appeal of Michigan — District of US

Page 643

288 N.W.2d 643

Lorraine MENDYK, Plaintiff-Appellant, v. The MICHIGAN EMPLOYMENT SECURITY COMMISSION, State of

Michigan, Defendant-Appellee.

Docket No. 78-3657.

94 Mich.App. 425, 288 N.W.2d 643

Court of Appeals of Michigan.

Dec. 19, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 427] Harvey E. Van Benschoten, Saginaw, for plaintiff-appellant.

David A. Wallace, Saginaw, for defendant-appellee.

Before ALLEN, P. J., and T. M. BURNS and HOLBROOK, ^* JJ.

T. M. BURNS, Judge.

Plaintiff-appellant, Lorraine Mendyk, appeals of right an August 30, 1978, judgment of the Court of Claims of no cause of action in the instant negligence action. We reverse and remand for a new trial.

[94 MICHAPP 428] On April 4, 1975, plaintiff slipped and fell in front of the Michigan Employment Security Commission (MESC) office in Saginaw, Michigan. Plaintiff testified at trial that at the time of the accident she was on her way to the MESC office to pick up her weekly unemployment compensation check.

Plaintiff, on the morning of the accident, had parked her automobile in a parking lot across the street from the MESC office. Upon alighting from her vehicle, plaintiff crossed the street and entered onto a sidewalk that abuts the MESC office. In order to get to the entrance to the office, plaintiff was required to walk on the sidewalk for about 30 feet. She testified at trial that although it had snowed a short time prior to the accident, the sidewalk appeared to be clear and that snow had been piled along each side of it.

Adjacent to the entrance to the MESC office is a mailbox. Plaintiff testified that as she attempted to enter the office she walked in front of the mailbox and at that point slipped and fell. She was only approximately two or two and one-half feet from the entrance to the building when she fell. As she was lying on the sidewalk waiting to be taken to the hospital, she felt the presence of ice underneath her body. As a result of her fall, plaintiff suffered a broken leg and a broken ankle.

Ms. Kathleen Preston, an employee of the MESC who testified on its behalf at trial, stated that when she learned of plaintiff's fall she ran to plaintiff's side to comfort her. She further testified that she saw snow packed around the base of the mailbox near where plaintiff had fallen. Some of this snow apparently had melted into water and the water was draining down the sidewalk towards the street. Although she testified that there was no [94 MICHAPP 429] ice on the sidewalk where plaintiff had fallen, Ms. Preston acknowledged that plaintiff had lain on the sidewalk for ten to 15 minutes. When plaintiff was later assisted up from the sidewalk, Ms. Preston noticed that the back of plaintiff's coat was soaked with water. After an ambulance had taken plaintiff to the hospital, Ms. Preston obtained some salt and sprinkled it around the area of plaintiff's fall.

In an opinion dated August 16, 1978, the Court of Claims found no cause of action, holding that plaintiff could not recover if she fell on a natural accumulation of ice or snow. The Court of Claims further rejected plaintiff's argument that she fell on an unnatural accumulation of ice that had frozen on the sidewalk as a result of the manner in which defendant had earlier attempted to clean the sidewalk of snow. The Court of Claims judge held that a party who attempts to make a sidewalk more safe is not liable for injuries that occur to passersby in the absence of evidence that the cleaning efforts had made the sidewalk more dangerous than its original condition.

Plaintiff first argues that the lower court erred in applying the "natural accumulation of ice or snow rule" to this case because the Supreme Court abrogated that rule in situations involving injury to a business invitee. See, Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975), Reh. den. 395 Mich. 923 (1976).

Michigan law has long held that a property owner has no liability for a plaintiff's injuries that were caused solely by a slip and fall on a natural accumulation of ice or snow. Lubbers v. Manlius Twp., 172 Mich. 387, 137 N.W. 804 (1912); Stanton v. Webster Twp., 170 Mich. 428, 136 N.W. 421 (1912); Johnson v. City of Marquette, 154 Mich. 50, 117 [94 MICHAPP 430] N.W. 658 (1908). This general rule was cited and approved by this Court in its recent decision in Hampton v. Master Products, Inc., 84 Mich.App. 767, 270 N.W.2d 514 (1978). In Hampton, a plaintiff was injured after she exited from her automobile and was attempting to walk over a pile of snow that had been thrown up on a sidewalk by municipal snow removal machinery. The plaintiff's purported right to recovery was asserted under M.C.L. § 691.1402; M.S.A. § 3.996(102), which requires governmental units to maintain streets and keep them reasonably safe and fit for public travel. In its opinion the Hampton Court noted:

"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." Id, 770, 270 N.W.2d 516.

Historically, the "natural accumulation" rule has been used not only to preclude a plaintiff's recovery against a governmental unit but also to preclude recovery in a suit against a private land owner. See, Bard v. Weathervane of Michigan, 51 Mich.App. 329, 214 N.W.2d 709 (1974); Gillen v. Martini, 31 Mich.App. 685, 188 N.W.2d 43 (1971). [94 MICHAPP 431] However, in Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., supra, the Supreme Court overruled existing Michigan law insofar as that law indicated that the "natural accumulation" rule applied in the invitor-invitee context. The Court held that the legal duty of an invitor to exercise reasonable care for the invitee's safety included the duty to take reasonable measures within a reasonable time after an accumulation of ice or snow to diminish the hazard of injury to the invitee. Although the Supreme Court concluded that the plaintiff before it, who was an invitee of the defendant and who had slipped and fallen on ice in the defendant's private parking lot, would be permitted to recover, the Court specifically declined to consider whether the rule that it was enunciating would be applied to cases where a plaintiff slipped on a public sidewalk:

"The thrust of existing Michigan case law tends to support the conclusion generally drawn that the 'natural accumulation' rule applied in the context of the invitee invitor relationship. See, in particular, Perl v. Cohodas, Peterson, Paoli, Nast Co., 295 Mich. 325, 294 N.W. 697 (1940). Cf. Weider (V. Goldsmith, 353 Mich. 339, 91 N.W.2d 283 (1958)), Supra ; and Betts v. Carpenter, 239 Mich. 260, 214 N.W. 96 (1927). The line of cases noting the natural accumulation rule, however, uniformly fails to harmonize or reconcile this rule with the rigorous duty which the law recognizes as owed an invitee. See, for a general discussion of the duty owed an invitee and distinction between such duty and the duty owed a licensee, Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970), and compare Torma (V. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149 (1953)), Supra a case which recognizes this rigorous duty and the cases cited above which discuss and rely solely upon the natural accumulation rule.

"Judge Holbrook, in his dissenting opinion in Bard v. Weathervane, opined that Michigan case law approved [94 MICHAPP 432] the 'natural accumulation' rule with respect to Public sidewalks but not with respect to private property in the context of the invitor invitee relationship. Proceeding from the distinction between public and private property, Judge Holbrook would find a broader duty with respect to natural accumulations of ice and snow owed the business invitee than is owed the user of public streets or sidewalks. On this appeal we do not determine the duty owed the user of public streets and sidewalks. Under present Michigan law, liability for failure to keep Public highways (including sidewalks) 'in condition reasonably safe and fit for travel' falls principally upon the involved governmental unit and is statutorily defined. MCLA § 691.1401 Et seq.; MSA § 3.996(101), Et seq., and Levendoski v. Geisenhaver, 375 Mich. 225, 134 N.W.2d 228 (1965). Decision of the case at hand does not require us to address the scope of the statutory duty owed the user of public streets and sidewalks respecting natural accumulations of ice and snow. We need not, therefore, pass upon the merits of the holdings in cases (E. g., Weider, supra ; and Betts, supra ) which deal with injury from accumulations of ice and snow occurring on public streets and sidewalks." (Emphasis in original.) Quinlivan, supra, 395 Mich. 255-257, 235 N.W.2d 737-738.

There is no question but that in the case before us plaintiff was a business invitee of defendant, MESC. An employee of the MESC testified at trial that while plaintiff was lying on the sidewalk someone obtained her unemployment check from the MESC office and gave it to her. Further, although plaintiff testified that she fell within a step or two of the MESC entrance, she does not contest the finding of the Court of Claims that she fell on a public...