Stamatakis v. Kroger Co. , 121 Mich. App. 281 ( 1982 )

121 Mich. App. 281 (1982) 328 N.W.2d 554

STAMATAKIS
v.
THE KROGER COMPANY
STAMATAKIS
v.
CITY OF GROSSE POINTE

Docket Nos. 55190, 56223.

Michigan Court of Appeals.

Decided September 27, 1982.

George J. Parrish, for plaintiff.

Ogne, Jinks, Ecclestone & Alberts, P.C. (by Dennis D. Alberts and Bryan Cermak), for the Kroger Company.

Coticchio, Zotter & Sullivan, P.C. (by Charles G. Skupin), for City of Grosse Pointe.

Before: BRONSON, P.J., and R.M. MAHER and M. WARSHAWSKY,^[*] JJ.

PER CURIAM.

Plaintiff filed suit against defendants Kroger and the City of Grosse Pointe, seeking to recover damages for injuries she suffered in a slip-and-fall. The trial judge granted Kroger's motion for summary judgment for failure to state a claim. From this order, plaintiff appeals by right. Grosse Pointe's motion for summary judgment was denied. This Court granted Grosse Pointe leave to appeal. The two appeals were ordered consolidated.

On appeal, plaintiff has advanced two theories allegedly supporting her claim against Kroger. The first is the "increased hazard" doctrine approved by this Court in Woodworth v Brenner, 69 Mich. App. 277; 244 NW2d 446 (1976). Simply stated, where snow or ice accumulates because of a negligent affirmative act of the landowner, or where the landowner's act increases the danger from a natural accumulation, a property owner may be held liable for an invitee's slip-and-fall injuries. Creech v Consumers Power Co, 59 Mich. App. 167; 229 NW2d 358 (1975).

We agree with plaintiff that this doctrine applies to the area in which she allegedly fell to the same extent that it applies to a public sidewalk abutting a landowner's property. See Mendyk v Employment Security Comm, 94 Mich. App. 425; 288 NW2d 643 (1979). Her allegation that Kroger increased the hazard due to the natural accumulation by cleaning an area in which she did not fall is not, however, legally sufficient. The increased hazard must be a physical one. It is not sufficient merely to prove that a landowner took some affirmative act affecting the natural accumulation. Plaintiff has not claimed that Kroger's act of cleaning part of the area physically increased the hazard in the rest of the area. If plaintiff's theory is that the act of partially clearing the area lulled her into a false sense of complacency, no claim is stated.

Her second theory is that the area in which she fell was made more hazardous by the ruts in snow and ice made by the wheels of shopping carts owned by Kroger and used by Kroger's patrons to carry groceries from the store to the public parking lot. We do not agree with plaintiff that this theory supports a claim of liability against Kroger. Also, the factual allegations in plaintiff's complaint do not support this claim. We affirm the grant of summary judgment to Kroger.

Defendant Grosse Pointe claims the trial judge erred by denying its motion for summary judgment based on governmental immunity. He held that the defense of governmental immunity does not apply to an alley "where a factual question exists whether custom or usage renders the alley in fact a highway".

MCL 691.1401(e); MSA 3.996(101)(e) defines "highway" as that term is used in the "highway exception" to governmental immunity, MCL 691.1402; MSA 3.996(102):

"``Highway' means every public highway, road and street which is open for public travel and shall include bridges, sidewalks, crosswalks and culverts on any highway. The term ``highway' shall not be deemed to include alleys."

We affirm the denial of defendant's motion for summary judgment, although we do not fully agree with the trial judge's statement of the law.

The government's duty to maintain the highways in reasonable repair so that they are reasonably safe and convenient for public travel does not extend to alleys. The term "alley" must be defined with due regard for the Legislature's intent in using it. In the present case, defendant supported its claim (that the place in which plaintiff fell was an alley) by presenting an affidavit concerning a review of the Wayne County Bureau of Taxation base map of the area. The map allegedly showed that the place was a "dedicated public alley". By itself, this showing was insufficient to defeat, as a matter of law, plaintiff's claim that the dedicated alley had become a highway by use and custom. We do not hold that a plaintiff's claim that an alley has become a highway usually presents a question for the trier of fact. We hold only that defendant's proof that the place had been dedicated as an alley was not dispositive. If plaintiff can prove that the physical characteristics and pattern of use of the place are those of a highway, not those of an alley, she may be entitled to claim avoidance of the defense of governmental immunity.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.