Zielinski v. Szokola

• Decision Date: 31 May 1988
• Docket Number: Docket No. 94476
• Parties: Anthony J. ZIELINSKI, Jr., and Mary Lou Zielinski, Plaintiffs-Appellants, v. Julius SZOKOLA, Gertrude Szokola, Irving P. Szokola, Janet M. Szokola, Individually and d/b/a Julius' Barber Shop, Julius Barber Shop, and the City of Livonia, a municipal corporation, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 289

423 N.W.2d 289

167 Mich.App. 611

Anthony J. ZIELINSKI, Jr., and Mary Lou Zielinski, Plaintiffs-Appellants, v. Julius SZOKOLA, Gertrude Szokola, Irving P. Szokola, Janet

M. Szokola, Individually and d/b/a Julius' Barber Shop,

Julius Barber Shop, and the City of Livonia, a municipal

corporation, jointly and severally, Defendants-Appellees.

Docket No. 94476.

Court of Appeals of Michigan.

Submitted Oct. 13, 1987.

Decided April 4, 1988.

Released for Publication May 31, 1988.

Morrison & Moss by Gregory W. Finley, Detroit, for plaintiffs-appellants.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Simeon R. Orlowski, Mt. Clemens, for defendants-appellees Szokola.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by William J. Leidel, Detroit, for defendant-appellee City of Livonia.

Before J.H. GILLIS, P.J., and GRIBBS and TIMMS, ^* JJ.

TIMMS, Judge.

In this slip and fall case, plaintiffs appeal as of right from orders granting summary disposition in favor of the City of Livonia pursuant to MCR 2.116(C)(7) and (10) and in favor of defendants Szokola and Julius Barber Shop pursuant to MCR 2.116(C)(8) and (10). We affirm.

On Monday, March 1, 1982, at 8:00 a.m., plaintiff Anthony J. Zielinski had his hair cut at defendant Julius Szokola's barber shop by defendant Irving Szokola. Plaintiff was Szokola's first customer of the day. The weather was clear and cold with a light dusting of snow covering the ground. As plaintiff was walking to the parking lot after his haircut, he slipped and fell on the public sidewalk. He suffered a broken ankle which required surgery to correct. He was on crutches for four or five months and was off work for approximately seven months. As a result, he instituted the instant action.

At his discovery deposition, plaintiff testified that he did not see any defects in the sidewalk at the time of his fall. Upon closer examination, he did observe a two-foot-square patch of ice on the sidewalk under the snow.

In his discovery deposition, Szokola described the condition of the sidewalk as pitted. While there was no expert testimony regarding the cause of the pitting, Szokola believed it resulted from his salting of the sidewalk over the twenty-nine years he had been at his business location. He described the pit holes as being at a maximum of a couple inches in diameter and one-half inch deep. He recognized that ice sometimes formed in the pits. According to him, at the time of plaintiff's accident, ice had formed on the smooth part of the sidewalk as well as in the pitted portion. He attributed the ice to the melting of ice and snow from a nearby snowbank and refreezing of the resultant water. He testified that he had not shoveled, swept, nor salted the sidewalk for several days prior to plaintiff's fall.

I

The general rule with regard to the liability of a municipality or property owner for injuries sustained by a licensee as a result of icy conditions is stated in a doctrine known as the natural accumulation doctrine. The doctrine provides that neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location. Hampton v. Master Products, Inc, 84 Mich.App. 767, 270 N.W.2d 514 (1978); Taylor v. Saxton, 133 Mich.App. 302, 349 N.W.2d 165 (1984).

The natural accumulation doctrine is subject to two exceptions. The first exception provides that liability to a licensee may attach where the municipality or property owner has taken affirmative action to alter the natural accumulation of ice and snow and, in doing so, increases the hazard of travel for the public. Woodworth v. Brenner, 69 Mich.App. 277, 244 N.W.2d 446 (1976); Mendyk v. Michigan Employment Security Comm., 94 Mich.App. 425, 288 N.W.2d 643 (1979); Hampton, supra. To establish liability under this doctrine, a plaintiff must prove that the defendant's act of removing ice and snow introduced a new element of danger not previously present. Morton v. Goldberg, 166 Mich.App. 366, 420 N.W.2d 207 (1988). Weider v. Goldsmith, 353 Mich. 339, 91 N.W.2d 283 (1958). Thus, for example, in Hampton, supra, the Village of Yale was deemed liable for injuries suffered by a pedestrian who slipped and fell while trying to walk over a snowdrift that had resulted from road plowing undertaken by the village two days earlier. This Court correctly concluded that the snowbank was an unnatural accumulation.

Just as a brief aside, Mendyk, supra, represents an example in which the unnatural accumulation exception was carried to an extreme. There, the plaintiff slipped and fell on a public sidewalk abutting an MESC building and suffered injuries. The sidewalk had been twice shoveled and salted. The Court of Claims rejected the plaintiff's argument that she had fallen on an unnatural accumulation of ice and entered a verdict of no cause of action. This Court reversed and remanded for a new trial, holding that the MESC's act of salting the sidewalk could have caused an unnatural accumulation of ice. As the Court explained:

"In the instant case the sidewalk abutting the MESC office had twice been shoveled and salted on the morning of plaintiff's slip and fall. It is the presence of this salt on the snow that plaintiff claims caused it to melt and freeze on the sidewalk. If this is true, then the action of the MESC in salting the sidewalk increased the plaintiff's hazard from one involving her trudging through snow to one involving her walking on ice. It is clear that her chances of injury from the latter are greater than her chances of injury from the former." 94 Mich.App. 435, 288 N.W.2d 643.

While the panel in Mendyk did not grant a judgment in favor of the plaintiff, but instead only held that the issue of the MESC's liability should be submitted to the factfinder, the impact of the case is nonetheless staggering. Implicit in the Court's ruling is the holding that all slip and fall cases caused by icy conditions resulting from salting should go to a factfinder. While liability may not always be found, the defendant must nonetheless suffer the cost of defending the action. ¹

Fortunately, this Court recently tempered the holding of Mendyk. In Morton, supra, this Court reversed an order denying the defendant drug store's motion for a directed verdict. This Court held that, in order to recover on a slip and fall case, the plaintiff had to prove more than just that defendant had salted earlier in the day and the plaintiff had slipped on ice. To recover, the plaintiff had to establish a causal connection between the defendant's actions and an increased hazard on the sidewalk. This Court felt that the defendant's actions in salting and clearing the snow decreased the danger to pedestrians. The Court politely ignored the holding in Mendyk, noting that the opinion did not compel a different result.

The second exception to the natural accumulation doctrine provides that liability may arise where a party takes affirmative steps to alter the condition of the sidewalk itself, which in turn causes an unnatural or artificial accumulation of ice on the sidewalk. Buffa v. Dyck, 137 Mich.App. 679, 682-683, 358 N.W.2d 918 (1984).

II

The natural accumulation doctrine applies only to injuries suffered by a licensee. It does not apply to situations involving an invitee injured on private property. With respect to an invitee, the landowner has an obligation to take reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury. Quinlivan v. The Great Atlantic & Pacific Tea Co, Inc, 395 Mich. 244, 235 N.W.2d 732 (1975). The specific standard of care, i.e., whether salt or sand should be used in addition to clearing the snow, is a fact question for the jury. Clink v. Steiner, 162 Mich.App. 551, 413 N.W.2d 45 (1987).

In Clink, a newspaper delivery person was injured when he slipped and fell on the defendant's driveway at 4:00 a.m. while delivering the morning Detroit Free Press. While the driveway had been cleared of snow, the runoff from thawing snow had frozen on the driveway. The plaintiff sued and the circuit judge granted the defendant's motion for summary disposition, MCR 2.116(C)(10).

On appeal, this Court reversed, ruling that, although the defendant had cleared the driveway, a jury question existed as to whether the defendant should have used salt or sand in addition to shoveling. 162 Mich.App. 551, 556-557, 413 N.W.2d 45. In so ruling, the panel relied heavily on Lundy v. Groty, 141 Mich.App. 757, 367 N.W.2d 448 (1985). There, an invitee, the defendant's cleaning person, slipped and fell on a driveway that had not been cleared of snow. It was uncontested that a snow storm had begun the previous night and that snow was still falling when the plaintiff arrived at noon.

We find it curious that the Clink panel, in holding that a jury question existed as to whether the defendant should have sanded or salted his driveway in addition to having shoveled it, would rely so extensively on a case where the plaintiff slipped during a snow storm on a driveway that had not yet been cleared. While the holding in Clink might support the result in Lundy, the converse does not appear to be true. Such is the nature of the cases in this area of law.

The panel's holding in Lundy is curious in its own right. The panel reversed the circuit judge's order granting the defendant's motion for summary disposition. In doing so, it ruled:

"In the instant case, defendant would owe plaintiff a duty because she should know that snow was falling on her property and that it would create a dangerous condition for the elderly plaintiff. The general standard of care would require defendant to shovel, salt, sand or otherwise remove the snow from the driveway.

"... The specific standard of care in the instant case would be the reasonableness of defendant's actions regarding the snow. Whether it was reasonable to wait for the snow to stop falling before she shoveled or...