Quinlivan v. Great Atlantic & Pacific Tea Co., Inc.

Decision Date25 November 1975
Docket NumberJ,No. 12,12
Citation235 N.W.2d 732,395 Mich. 244
PartiesLarry E. QUINLIVAN and Lois Quinlivan, Plaintiffs-Appellants, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., Defendant and Cross-Plaintiff-Appellee, and Clarence Jahn and Dorthea Jahn, Defendants and Cross-Defendants-Appellees. une Term. 395 Mich. 244, 235 N.W.2d 732
CourtMichigan Supreme Court

Theodore M. Rosenberg, Flint, for Larry E. Quinlivan and Lois Quinlivan, plaintiffs-appellants, by Harry Riseman, Detroit, of counsel.

Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for cross plaintiff-appellee; Haggerty & Franklin, Detroit, of counsel.

Neenan & Gugel, Detroit, for Clarence Jahn and Dorthea Jahn, defendants and cross-defendants-appellees, by Timothy F. Neenan, Detroit.

Reamon, Williams, Klukowski & Craft, P.C., by William G. Reamon, Grand Rapids, amicus curiae (in support of plaintiffs-appellants).


Plaintiffs 1 brought suit against defendant A & P and defendants Jahn for injuries sustained in the fall on the parking lot of a shopping center owned by defendants Jahn in which defendant A & P maintained its store. A & P filed a cross-complaint against the Jahns as lessors of the A & P premises on the basis that the Jahns were under a duty to indemnify A & P pursuant to the terms of the lease between the parties.

Evidence submitted at trial by plaintiffs indicated that on the evening of January 30, 1967, Larry Quinlivan parked his automobile in the parking lot adjacent to the A & P store intending to buy some milk and bread at the A & P. The parking lot was snow-covered and icy, although snow had not fallen for several days. After departing his automobile, plaintiff took several steps in the direction of the A & P store and then felt his feet fly out from under him. He landed on his hip area and shortly thereafter was transported to the hospital by ambulance. Subsequent to the accident, Larry Quinlivan was operated upon several times. As a result of these events he suffered physical and mental disablement with attendant disintegrating effect upon his employment capability and family life.

Plaintiffs allege that defendants negligently permitted a dangerous icy condition to exist in the parking lot area. Such negligence it was urged, caused plaintiff's injuries. Prior to trial, the trial court entered a summary judgment of indemnification in favor of defendant A & P against defendants Jahn. The jury ultimately awarded plaintiffs a verdict of $160,000 2 against defendant A & P, finding no cause of action as to defendants Jahn. The Court of Appeals reversed the jury award against defendant A & P, relying upon Weider v. Goldsmith, 353 Mich. 339, 91 N.W.2d 283 (1958). The Court of Appeals resolution rendered discussion of the indemnification issue unnecessary.

We conclude that A & P, as proprietor of a business, owed a duty to Larry Quinlivan to use reasonable care to protect against hazards arising from natural accumulation of ice and snow. We overrule existing case law to the extent that it indicates, and has been interpreted to indicate, that no duty is owed the invitee respecting hazards arising from natural accumulations of ice and snow. The jury verdict against defendant A & P was rendered properly. We further conclude that summary judgment of indemnification was rendered properly against defendants Jahn in accordance with the terms of the lease between defendant A & P and the Jahns. The Court of Appeals is reversed and the

judgments below are reinstated. I. STANDARD OF CARE OWED AN



At trial, both defendant A & P and defendants Jahn conceded that they owed some duty to exercise reasonable care to Larry Quinlivan as an invitee on the shopping center premises. The precise nature of the duty owed plaintiff and the relationship of such duty to the alleged injury-causing condition of the parking lot was not specified on the record.

The trial court gave jury instructions which read in part as follows:

'I charge you, members of the jury, that the defendants, the Great Atlantic & Pacific Tea Company, and the Jahns, owed to the plaintiff the duty to be reasonably sure they were not inviting him into a place of danger, and to that end they must exercise ordinary care and prudence to render the parking lot premises reasonably safe for plaintiff's visit.

'I further charge you, members of the jury, that while the A & P is not an insurer of safety of an invitee, if the A & P Company knows, or reasonably should know of a dangerous condition on its premises, it may become liable for injuries resulting therefrom, and it may not delegate the responsibilities to another and thus escape liability.

'I further charge you, members of the jury, that a land owner is not liable to his invitees for injuries caused by the landowner's failure to remove natural accumulations of ice and snow from a normal outdoor unobstructed sidewalk or premises. 3

'I further charge you that a possessor of land is subject to liability for bodily harm caused to business visitors by natural or artificial conditions thereon, if, but only if, he or she knows, or by the exercise of reasonable care could discover, the conditions which, if known to him, he should realize is involving an unreasonable risk to said business visitors.'

Before the jury began deliberations, defendant A & P moved for directed verdict on the basis that the proofs showed that the condition existing in the shopping center parking lot to be attributable solely to natural accumulation of ice and snow. Thus, it was argued, under the law defendants were absolved of any causal negligence. The trial court denied defendant's motion, commenting that 'Whether or not it is a normal or natural accumulation of snow, it is still up to the jury to make a determination as to whether or not the defendants used that degree of care that is necessary and required of them to make sure that the dangerous condition, or no defect existed. I think the mere fact that it could have been a natural or normal accumulation does not necessarily negate the duties imposed on all the parties here, especially on (A & P).'

When A & P renewed its contention in the form of a motion for judgment notwithstanding the verdict and later upon motion for new trial, it was again rejected by the trial court.

The Court of Appeals essentially agreed with the position set forth by A & P in the trial court, concluding:

'Assuming that someone did something by way of snow removal, this record fails to disclose any affirmative act by A & P which increased the hazard created by the natural accumulation of snow and ice or that created a new hazard. Absent such proof, A & P is not liable for the injuries sustained by Larry E. Quinlivan or the derivative damages sustained by his wife due to such injuries. Weider v. Goldsmith, 353 Mich. 339, 91 N.W. 283 (1958).' 4

The issue before us--aptly framed by the disparate positions taken by the adversaries and the courts below--requires our crystallization of the legal relationship between conditions upon property arising as a result of natural accumulation of ice and snow and a business proprietor's and landowner's duty to exercise reasonable care for the safety of an invitee.

This Court in Torma v. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149 (1953), considered the circumstance of injury occurring to plaintiff, a business invitee, when she fell upon an icy angle iron at the entrance to defendant's store. A verdict for plaintiff resulted. On appeal, defendant, not unlike defendant A & P herein, alleged that plaintiff failed to establish a prima facie case of liability on the part of the defendant. 5 In disagreeing with defendants' contention, this Court stated:

'As invitor the defendant owed the duty to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury. In Blakeley v. White Star Line, 154 Mich. 635, 118 N.W. 482, 483, 19 L.R.A., N.S., 772 (129 Am.St.Rep. 496) (1908); this Court quoted with approval from Cooley on Torts (p. 605) as follows:

"'One is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit."

'Plaintiff testified positively to the presence of snow and ice in the entrance to defendant's store. It was her claim that a thin coating of ice on the angle bar was directly responsible for her slipping and falling. If the condition described in the testimony existed at 9:45, it is a fair inference, in view of the weather conditions, that the entrance had not been swept out or scraped out that morning. Under the rule as stated by Justice Cooley there was at least an issue of fact as to whether defendant had exercised proper precautions to enable its customers to enter the store with reasonable assurance of safety in so doing.'

Weider v. Goldsmith, supra, the case deemed dispositive by the Court of Appeals, involved plaintiff tenant's fall on an ice and snow covered public sidewalk in front of an apartment building owned by defendant landlords. A jury verdict for plaintiff resulted, but the trial court granted defendants' motion for judgment notwithstanding the verdict. On appeal, plaintiff relief upon the theory that defendants, by their act of shoveling the sidewalk, had increased the natural hazard of the free fall of snow and ice, thereby causing injury. This Court concluded that plaintiff's proofs were insufficient to establish that injury arose...

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    ...that the Court had "adopted" the original § 343 in Ackerberg and the revised version in Quinlivan v. Great Atlantic & Pacific Tea Co., Inc. , 395 Mich. 244, 259-261, 235 N.W.2d 732 (1975), and that, together with § 343A, these sources "correctly define the law regarding a premises owner's d......
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