Anderson v. Merkel , 393 Mich. 603 ( 1975 )

393 Mich. 603 (1975) 227 N.W.2d 554

ANDERSON
v.
MERKEL

Docket No. 55194, (Calendar No. 10).

Supreme Court of Michigan.

Argued October 8, 1974. Decided April 7, 1975.

Burwell & Shrank, for plaintiffs.

Des Jardins & Des Jardins, for defendant.

T.G. KAVANAGH, C.J.

In this slip and fall case the plaintiff was injured while walking through a passageway in defendant's restaurant. Close to the passageway there was an ice-making machine from which ice had been spilled on previous occasions. There was conflicting testimony as to whether there was ice on the walkway at the moment of the plaintiff's fall.

The trial judge, sitting without a jury, gave a judgment of no cause, finding as a matter of fact that there was no negligence on the part of the defendant nor was there any testimony that the ice machine in its location was "per se a dangerous instrumentality or condition". The trial judge found further that the plaintiffs "failed to show that the condition existed for a sufficient length of time to attribute constructive knowledge to defendant or his employees".

The Court of Appeals in a memorandum opinion affirmed.

Plaintiffs claim, and we agree, that the trial judge was in error when relying on Winfrey v S S Kresge Co, 6 Mich. App. 504; 149 NW2d 470 (1967), he concluded as a matter of law that the plaintiffs had to "show that the condition existed for a sufficient length of time to attribute constructive knowledge to the defendant or his employees".

If there was ice on the floor at the time of fall, the plaintiffs would not have to show that defendant had actual or constructive knowledge of the condition. Defendant had ample notice that ice had been spilled by his employees on prior occasions. He is not entitled as a matter of law to separate notice on each subsequent occurrence, for the condition was created by his employees.

We hold that the correct rule of law was stated in Hulett v Great Atlantic & Pacific Tea Co, 299 Mich. 59; 299 N.W. 807 (1941):

"It was not necessary for plaintiff to prove defendant had actual or constructive knowledge of the hazardous condition of its floor, as the alleged negligence was the act of defendant in creating this condition. Defendant could not by its own act create a hazardous condition and then demand that plaintiff, who was injured as a result thereof, prove it had knowledge of such condition. Knowledge of the alleged hazardous condition created by defendant itself is inferred."

If the court had expressly found that 1) there was no ice on the floor, or 2) there was ice on the floor but the plaintiff did not slip on it, his decision would have to be affirmed. As fact finder he would have been free to reject the evidence that there was ice on the floor or equally free to find the plaintiff did not slip on it.

It is not fully clear, however, from the trial judge's opinion exactly what he did find.

Because of his reliance on Winfrey, supra, we are persuaded that the trial judge addressed himself to the wrong question in deciding this case.

Accordingly we set aside the judgment and remand for further consideration by the judge who tried this case. See Dauer v Zabel, 381 Mich. 555 at 558; 164 NW2d 1 (1969).

Costs to abide the event.

T.M. KAVANAGH, SWAINSON, WILLIAMS, LEVIN, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred with T.G. KAVANAGH, C.J.

NOTE: Where possible, a syllabus (headnote), such as this, will be released at the time the opinion is released. This syllabus is not a part of the opinion of the Court but has been written by the Supreme Court Reporter as a summary of the case for the convenience of readers. See United States v Detroit Lumber Company, 200 U.S. 321, 337; 26 S. Ct. 282; 50 L. Ed. 499 (1906).